UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


LEGAL  HISTORY 


OF  THE    ENTIRE   SYSTEM 


—  OF  — 


Nashville,  Chattanooga  &  St.  Louis  Ry. 


,x   \  i    > 

Including  and  discussing  the  Charters,  Amendments,  Rights,  Privileges, 

and  Franchises  of  main  stem  and  branches;  By-laws,  Mortgages, 

Abstract  of  Title  to  every  branch  acquired,  showing  width 

of  right  of  way,  distance  built,  deeds  or  leases  to,  and 

mortgages  on  same  ;  laws  and  decisions  relat- 

ing to  right  of  way,  internal  organiza- 

tion, meetings,  etc.,  as  well  as 

GENERAL  POWERS 

—  IN  — 

Alabama,  Georgia,  Kentucky  and  Tennessee. 


—  BY  — 

jr.  r>.  B.  r>eBow, 

Of  the  Nashville  Bar. 


PRESS  OF 

MARSHALL  &  BRUCE  Co.,  LAW  PUBLISHERS, 

NASHVILLE,   TENN. 


oo 


43, 3,  q 


NJ* 


$  DEDICATION 


IN  the  preparation  of  this  lego-historic  treatise  on  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  and  possessions,  one 
could  not  but  be  impressed  with  the  magnitude  of  its  present 
proportions,  and  the  stupendous  labors  and  financiering  that 
must  have  been  expended  in  its  development.  From  a  mere 
connecting  link  between  Nashville  &  Chattanooga,  it  has  grad- 
ually spread  out  and  expanded  until  now  it  forms  one  of  the 
important  railway  systems  of  the  South.  The  old  land- 
marks along  its  right  of  way  are  fast  disappearing;  the  primi- 
tive wood  engine  has  given  place  to  the  modern  leviathan  of  the 
rail;  the  hills  and  angles  of  infancy  have  been  toned  down  to 
conform  to  scientific  grades  and  curves;  the  crude  day  coaches 
of  the  past  have  been  supplanted  by  moving  palaces  for  com- 
merce and  transportation.  To  no  one  man  or  set  of  men  can 
be  attributed  all  this.  Board  after  board  of  directors  have 
performed  their  duty  nobly  and  passed  into  the  silent  beyond. 
Presidents,  general  counsel,  general  managers,  civil  engineers, 
treasurers,  and  hosts  of  employes  have  all  labored  conscien- 
tiously and  well  to  bring  about  this  success.  In  the  archives 
of  the  company  may  be  found  volumes  in  their  praise.  With- 
out, therefore,  intending  invidious  comparisons,  but  with  a  full 
consciousness  and  sincere  appreciation  of  all  such  able  services, 
it  is  yet  my  pleasant  privilege  to  dedicate  this  work  to  him  who, 
in  my  humble  opinion,  and  after  a  careful  and  exhaustive  re- 
view of  the  expansion  and  development  of  the  road,  is  most 
entitled  to  be  remembered  as  having  shaped,  controlled,  and 
wrought  its  present  destiny.  Actuated  by  these  motives,  as 
well  as  by  sincere  personal  esteem  and  regard,  this  volume  is 
respectfully  dedicated  to  the  president  of  the  company — J.  W. 
Thomas.  A  history  of  the  road  is  almost  a  history  of  his  life's 
work.  J.  D.  B.  DEBow. 


PREFACE. 


The  Nashville,  Chattanooga  &  St.  Louis  Kailway  was  origi- 
nally chartered  by  the  acts  of  the  General  Assembly  of  the 
State  of  Tennessee,  1845-6,  chapter  1,  for  the  purpose  of  con- 
structing a  railroad  from  Nashville  to  Chattanooga,  a  distance 
of  151  miles.  After  its  completion  and  in  exemplification  of 
the  theory  of  the  "survival  of  the  fittest,"  it  has  gradually 
spread  out  by  absorption  and  expansion  until  now  it  comprises 
a  system  of  1,188.75  miles  of  main  track  and  255.62  miles  of 
sidings,  distributed  as  follows:  In  Tennessee,  875.02  miles 
main  track  and  212.88  miles  of  siding;  in  Alabama,  114.15 
miles  main  track  and  19.29  miles  of  siding;  in  Georgia,  142.25 
miles  main  track  and  13.07  miles  of  siding;  in  Kentucky, 
57.33  miles  main  track  and  10.38  miles  of  siding,  making  a 
grand  total  of  1,444.37  miles  of  main  and  side  tracks  now 
being  operated.  It  is  a  fact  worthy  of  comment  that  of  the 
2,998.22  miles  of  railroad  in  the  state  of  Tennessee,  operated 
by  forty-eight  different  companies,  the  mileage  of  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  more  than  doubles  that  of 
any  other  company  and  amounts  to  nearly  one-third  -of  their 
combined  mileage. 

The  present  work  was  undertaken  with  a  view  .of  furnishing 
a  complete  legal  history  of  this  entire  system;  a  full  und  accu- 
rate abstract  of  title  to  every  branch  acquired,  whether  by 
lease,  construction  or  purchase,  showing  width  of  right  of  way, 
when  and  how  acquired,  legality  thereof,  distance  built,  to- 
gether with  the  deeds  or  leases  to  and  mortgages  on  the  same; 
the  laws,  both  legislative  and  judicial,  relating  to  its  right  of 
way,  internal  organization,  and  corporate  powers;  the  charters, 
amendments,  by-laws,  general  powers,  rights,  privileges,  and 
franchises  of  the  main  stem  and  branches  in  the  various  states 
through  which  the  road  or  any  part  thereof  runs,  as  well  as 

(5) 


VI  PREFACE. 

the  supreme  court  decisions  of  all  the  states  and  of  the  United 
States  construing  them  or  similar  ones. 

The  magnitude  of  the  undertaking  may  better  be  appreciated 
when  it  is  understood  that  it  derives  those  powers,  rights,  priv- 
ile^-os,  and  franchises  from  four  different  states,  and  from 

^ 

twenty-nine  different  charters,  to  say  nothing  of  numerous 
amendments  and  enabling  acts,  the  mere  compilation  of  which 
was  by  no  means  a  small  proportion  of  the  labors  of  the  work. 
By  far  the  greater  number  were  granted  by  special  enactments, 
extending  over  a  period  from  18,45  in  Tennessee,  1844  in  Ala- 
bama, 1836  in  Georgia,  and  1851  in  Kentucky,  to  the  present 
time.  The  dates  mentioned  being  those  of  the  incorporation 
by  the  respective  states  of  the  oldest  companies  whose  railroads, 
franchises,  etc.,  have  subsequently  been  acquired  by  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway.  The  collection  of  all 
this  was  rendered  more  difficult  by  virtue  of  the  fact  that  prior 
to  the  constitution  of  1870  in  Tennessee,  and  until  compara- 
tively a  recent  date  in  the  other  states,  the  caption  of  the  acts 
gave  no  indication  of  their  contents,  thus  necessitating  the  read- 
ing, word  by  word,  of  the  entire  legislative  enactments  of  each 
successive  general  assembbr  of  the  respective  states  between  the 
dates  mentioned.  This  has  been  carefully  and  conscientiously 
done,  for  upon  it  the  value  of  the  work  depends.  Only  a  small 
part  of  the  present  mileage  of  the  company  is  operated  under, 
the  franchises  acquired  by  the  original  charter  and  amendments 
of  the  Nashville,  Chattanooga  &  St.  Louis  Railway  proper.  In 
fact,  only  that  part  between  Nashville  and  Chattanooga.  The 
balance,  which  amounts  to  nearly  nine-tenths  of  the  mileage,  is 
oj>erated  under  the  rights,  privileges,  and  franchises  granted  by 
the  respective  states  to  the  original  twenty-six  or  seven  com- 
panies whose  roads,  franchises,  etc,  have  since  been  acquired  by 
lease  or  purchase.  The  importance  of  carefully  compiling  their 
charters,  amendments,  and  enabling  acts,  therefore,  is  as  great 
as  compiling  those  of  the  dominant  company,  for,  in  ascertaining 
the  powers,  rights,  privileges,  and  franchises  of  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  over  the  line  of  those  roads, 
regard  must  always  be  had  to  their  charters,  amendments,  and 


PREFACE.  VII 

enablings  acts,  as  well  as  the  laws  of  the  respective  states 
affecting  them.  In  other  words,  as  to  the  lines  of  the  roads  so 
purchased  or  leased,  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  would  be  vested  with  all  the  powers,  rights,  privileges, 
and  franchises,  and  subject  to  all  the  duties  and  liabilities,  ex- 
cept as  otherwise  provided  by  statute,  as  the  original  company 
or  companies  had.  To  illustrate:  If  a  company  whose  road, 
franchises,  etc. ,  were  purchased,  had  the  power  to  sell  or  lease, 
then  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  as  the 
legal  purchaser  thereof,  would  also  have  those  powers  over  the 
line  of  that  particular  road,  as  fully  and  completely  as  the  origi- 
nal company  had.  All  of  this  is  more  fully  explained  in  suc- 
ceeding pages. 

The  work  embraces  all  acts  of  the  legislatures  of  the  states 
of  Tennessee,  Alabama,  Georgia,  and  Kentucky,  bearing  on  the 
subjects  treated,  up  to  and  including  those  of  Tennessee,  1899; 
those  of  Alabama,  1898-99;  those  of  Georgia,  1898,  and  those 
of  Kentucky,  1897,  which  are  the  latest  acts  of  the  respective 
states.  It  also  embraces  all  similar  supreme  court  decisions 
of  the  same  states  up  to  and  including  101  Tenn. ;  117  Ala.; 
104  Ga.,  and  99  Ky.,  as  well  as  similar  decisions  of  the  supreme 
court  of  the  United  States  up  to  and  including  170  U.  S. 

The  work  is  the  result  of  years  of  labor  and  thought,  and 
though  it  can  hardly  be  expected  that  it  will  be  perfectly  free 
from  errors,  yet  it  is  hopefully  as  well  as  trustfully  launched 
upon  its  mission  with  the  consciousness  that  the  best  efforts  of 
the  author  were  expended  in  order  to  render  it  so. 


LIST  OF  STATIONS 

ON  THE  NASHVILLE,  CHATTANOOGA  &  ST.  LOUIS  RAILWA  Y,  BY  DIVISIONS, 

SHOWING  DISTANCE  OF  EACH,  RESPECTIVELY, 

FROM  NASHVILLE,  TENN. 


OHATTANUUUA 

Motion*. 

U1V1S1UH 

Miletf 

.  .  .  .Ti'iin. 

roin 

151 
149 
147 
145 
141 

137 
134 
130 
129 
125 
123 
117 
112 
106 
102 
96 

87 

HUKTHWEBTEKH   DI1 
Continued. 

Stations. 

N.  &  T.  Junction  
Dickson  
Pond  

roun 

MwAVi 
Tenn. 

— 
"om 

42 
44 
60 
67 
60 
62 
66 
67 
73 
76 
77 
80 
86 
90 
92 
94 
96 
101 
105 
112 
117 
125 
132 
138 
141 
144 
147 
151 
164 
Hill 
161 
168 

B. 
3 

42 
47 
49 
50 
62 
58 
69 
61 
62 
64 
67 
69 
70 
78 
76 

78 
• 
86 
88 
96 
98 
102 
104 
106 
59 
60 

WESTERN  ft  ATLANTIC 
DIVISION. 

«•««••          352? 

Chattanooga  Tenn.  151 
Boyce  "       156 

King's  Bridge                                1IUT 

Cravens  
Lookout  

Wauhatchie  -• 
Hooker  Ga. 
Etna  Mines  Tenn. 
Whiteside  
Vulcan  ' 
Ladds  
Shellmound  
Carpenter  Ala. 
Bridgeport  ' 
Bolivar  
Stevenson  
Bass  
Anderson  Tenn. 
Sherwood  " 
T.  C.  Junction  " 
Cowan  ' 
De<*herd  ' 

Tennessee  City  
McEwen  
Briggs  
Gorman  
Hopkins  Switch  
Waverly  
Pranks  
Box  
Johnsonville  
Eva  
Cainden  .. 
Lipe  
Sawyer's  Mill  
H.  R.  Junction  
Hollow  Rock  
Rosser  

Chickatnauga 
Graysville  
Ringgold  
CatooM  
Tunnel  Hill 
Rocky  Face  
Dalton  
Tilton  
Resaca  
Calhoun  
M  (-Daniels  .... 
Adalrsville.  ... 
Halls  
Cement  
Kingston  
Gains  Mill  

•  iee 

Ga.  168 
174 
176 
188 
185 
189 
198 
206 
211 
214 
220 
225 
229 
230 

Estill  Springs  
Tullahoma  
Normandy  
Cortner  
Haley  
Wartrace  
Belle  Buckle  
Fosterville  
Christiana  
Ruc.ker  
Winsted  
M  urf  reesboro  
Russell  
Florence  
Wade  ...  . 

—  -  ; 

77 
69 
62 
61 
58 
55 
51 
45 
42 
38 
36 
32 
28 
26 
22 
20 
16 
14 
12 
10 
8 
6 
5 
0 

65 

Hico  " 
McKenzie  " 
Gleason  " 
Dresden  " 
Ralston  " 
Martin  " 

Terrell  " 
Paducah  Junction  " 
UnionCity  " 
Woodland  Mills  " 
State  Line  Ky. 
Hickinan  " 

WEST  NASHVILLE  BRANC 
West  Nashville  Tenn. 

Bests  

Rogers  
Carte  rsville  
Emerson  
Bartow  
Etowah  Iron  Co  
Allatoona  
Ruby  
Acworth  
Kennesaw  
Elizabeth  
Marietta  
Smyrna  
Mclvors  

Smyrna  
Lavergne  

Kimhro 

::::  - 

Gilmore  
Iceville  

279 

Mt.  View  
Antioch  
Asylum  
(Jurrv  

• 

CENTREVILLE  BRANCH. 
Dickson  Tenn. 

Bolton  
Cleburne  
Hills  Park  
Atlanta  

282 
289 

Glencliff  
Nashville  

SHELBYVILLE 

Wartrace  
Cald  well's  

BRANCH. 
—  Tenn. 

Tldwell  
Iron  Hill  

? 

ROME 

BRANCH. 
Ga      230 

...      "       233 

Lyle  

••       234 

Cantrell  

Eves  

"  237 

••       239 

Shelbyville  

NORTHWESTERN 
Nashville       

DIVI8I01 

...  .'!'••  ii  ii 

63 

I. 

0 
1 
2 
7 
9 
11 
12 
16 
20 
24 
25 
30 
87 
39 

Brown  

Dykes  

"  241 

"       242 

\uiitielly    

Orion 

••      MB 

Goodrich  

Home 

040 

Grinders  

MEMPHIS  ft  PADUCAH 
DIVISION. 

Paducah         Kv      189 

Stock  Yards  

Centreville  

ii 

>i 

Deuns...>  

Buffalo    . 

0 

Hicks  

•1 

Ktna        

N..  N.  A  M.  V. 
Oaks         

Crossing  "  181 
"  ITS 

Bellcvue        

«• 

Newsom  ...... 

>• 

(  )verby  

•  170 

P«gram  

" 

Shubert. 

Klva  

'  168 

Kingston  Springs  .. 
Craggin  Hope 

....       " 

Mil  likens    

•       166 

Riverside    

lola  

164 

White  Bluff 

•  > 

Alton's  Creek  

•  160 

M 

Lyle  

Glade     

•       156 

I'olesburg... 

V 

Warner  .  .  . 

Himlin  .. 

•       152 

Hut  continued  on  other  side  of  Map. 


MAP,  SHOWING  MAIN  LINE  AND  BRANCHES  OF  N.,  C. 


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(I)  Mileage  in  Tennessee:  Main  truck 875.02miles. 

C.')  Mileage  In  Alabama:  Main  track 114.15  miles. 

(3)  Mileage  in  Georgia:  Main  track 142.25  miles. 

(4)  Mileage  in  Kentucky:  Mnin  track 57.33  miles. 


Side  tracks 212.88  miles 

Side  tracks 19.29  miles 

Side  tracks 13.07  miles 

Sidetracks...  10.38  miles 


Total  miles  main  track 1188.75  miles.  Total  miles  sidincs 255.62  miles 

Total  miles  main  and  side  tracks  in  entire  system 1444.37 

rhere  are  about  48  railroad  coin  panics  in  the  State  of  Tennessee.  Thn  total  mileage  of  these  companies 
in  Tennessee  amounts  to  2998.22  miles.  Of  this  mileage,  that  of  the  N..  C.  »t  St.  L.  Rv.  more  than  doubles 
that  of  any  other  railroad  in  the  State  and  amounts  to  nearly  one-third  of  their  com'bined  mileage. 


ST.  L.  RY, 


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LIST  OF  BRANCHES  IN  ORDER  OF  THEIR  ACQUISITION. 

Nashville  &  Chattanooga  R.  R.—  [Main  Branch.]  Chartered,  1846;  extended 

from  Niislivillc  i<>  Chattanooga,  151  mile*.    Se«  p.  1,  herein. 
Shelbyvillc   Branch.—  Built  by  N.  0.  A  St.  L.  Ry;  oompleUd  about  1852; 

extended  from  \\artrace  to  Shelbyville,  8-1  miles.    See  p.  2MJ.  herein. 
Jasper  Branch.-  U'art  of  Sequalchie  Valley  Br.l    Built  by  N.  C.  4  St    I. 

Ry;  completed.  Octolter,  1867;  extended  from  Bridgeport  to  Jasper. 

12  iiiili-s.     See  p.  264.  herein. 
Nashville*  Northwestern  R.  R.    (Northwestern  Br.l    Purchased.  November 

21.  IKT'J;  chartered,  1HT>1-L':  extended  from  Nashville  to  Hickman.  Ky.. 

168  miles,  after  it  purchased  Hi<-Uintui  .V  ()l>iun  Ry.    See  p.  711,  herein. 
Hickman  &  Obion   R.  R.—  [Kxtenslon  of  Northwestern   Br.l      Purchased. 

November   -'I.   IKT2,  ut    same   time    Nashville   A    Northwestern   was 


purchased.  it  being  a  part  of  It-  extended  from  Union  City 

nmn,  K\  ..  14  miles.    See  p.  104,  herein. 
Pikeville  Branch.—  [Hurt  of  Beq  natch  ie  Valley  Urnnch.1     Purchaaed.  Janu- 

:ir\  27.  1K77:  Ctniriered,  1868  0;  extended  from  Jasper  to  Plkeville. 

4ft  miles.    See  p.  26«,  here'n. 
Winchester  &  Alabama  R.  R.—  I  Part  of  Hayettevllle  Br  ]    Purchased.  July 

2H.  1H77;  chart.-r.-d.  1840-50;  extended  from  Itecherd  to  Kayetteville. 

40  miles,  and  subsequently  from  Klora  to  Tennessee  State  line,  about 

5  miles.    See  p.  152,  herein. 
McMinnville  &  Manchester  R.  R.-[Part  of  McMinnville  Br]     Purchased. 

.lulv  2*.  1877;  chartered.  184H  50;  extended  from  Tullahoma  to  Mc- 

Minnville.  35  miles.    See  p.  168.  herein. 
Tennessee  &   Pacific   R.  R.—  [Lebanon   Br.]    Purchased,  October  1,  1877; 

chartered.  1865-6;  extended  from  Nashville  to  Lebanon,  29.81  miles. 

See  p.  129,  herein. 
Southwestern  R.  R.—  Part  of  McMinnville  Br.]     Purchased,  -  ; 

chartered,  1851-2:  extended  from  McMinnville  to  Sparta,  when  com- 

pleted by  N.  C.  *  St.  L.  Ry.,  26  miles.    See  p.  102,  herein. 
Inman   Branch.     |  I'urt  of  Sequatchie  Valley  Br]    Purchased,  January  1. 

1883:  built  by  Tenn.  Coal,  Iron  &  R.  R.  Co.,  under  its  charter;  ex- 

tended from  Victoria  to  Inman,  5  miles.    See  p.  269,  herein. 
Nashville  &  Tuscatoosa  R.  R.—  [Part  of  Centerville  Br.]     Purchased  in  sec- 

tions, on  March  13,  1883,  and  June  20,  1884;  chartered,  1877;  extended 

from  Dickgon  through  Centervllle  to  Lewis  county  line,  or  Klmtnins, 

46  miles.   See.  p.  227,  herein;  also,  "Allen's  Creek  Extension,"  below. 
Tracy  City  Branch.—  [Sewanee  Br.l    Purchased.  Jan  1,  1887;  built  by  Se- 

wanee  Mining  Co.,  under  its  charter;    extended    from  Cowan    to 

Tracy  City.  20  miles.    See  p.  277,  herein. 
West  Nashville  Branch.—  Purchased,  July  6,  1887;  chartered,  1887;  extended 

from  Nashville  to  town  of  West  Nashville,  3  miles.  Seep.  318,  herein. 
Huntsville  &  Elora  R.  R.—  [Or  Branch.]     Purchased.  October  28,  1887;  char- 

tered. 1886-7;  extended   from  Huntsville,  Ala.,  to  Tennessee  State 

line,  22  miles.    See  p.  214,  herein. 
Duck  River  Valley  Narrow  Gauie  R.  R.—  [Columbia  Br.]    Purchased.  No- 

vember^. 1887;  chartered^  1872.  extended  from  Columbia  to  Fayelte- 

ville.  48  miles.    See  p.  250.  herein. 
Bon  Air  R.  R.—  [Extension  of  McMinnville  Hr.|     Purchased,  December  3, 

1887;  chartered,  1887;  extended  from  Sparta  to  Bon  Air,  7.98  miles. 

See  p.  199,  herein. 
Western  &  Atlantic  R.  R.—  [Or  Branch.]     Leased,  July  19,  1890;  owned  by 

Stute  of  Georgia;   extended  from  Chattanooga,  Tenn.,  to  Atlanta, 

<;.i..  138  miles.    See  p.  335.  herein. 
Tennessee  &  Coosa  R.  R.—  [Gadsden  Br.  ]    Purchased.  April  6,  1891;  char- 

tcred.  1M4-I  ft:  extended,  when  completed  by  N.  C.  <!  St.  L.  By.,  from 

<  iiidsden.  Ala.,  to  Huntsville,  Ala..  73  miles.    See  p.  287.  herein. 
Allen's  Creek  Extension.—  I  Extension  of  Onterville  Br.|     Purchased,  Sep- 

temlx-r  -4.  1892;  built  by  Southern  Iron  Co.;   extended   from  Kim 

inins  to  Munnie.  18  miles.    See  p.  228,  herein. 
Chattanooga  Terminal  R.   R.—  Leased,  July  29,  1895;  chartered.  1892;  ex- 

tended from  point  on  main  line  in  Chattanooga,  about  4,675  feet,  to 

ChatlnnoogH  Iron  Co.  property.    See  p.  448.  herein. 
Swan  Creek  Branch.—  [Offshoot  from  (Vnterville  Branch.]    Built  by  N.  C. 

A  st.  L.  Ry.,  1896;  extended  from  Centerville  to  Swan  Creek,  to  meet 

with  road  of  Unck  River  Phosphate  Co.    See  p.  228,  herein. 
Louisville  &  Nashville  Terminal  Property.—  [At  Nashville.]    Leased,  June 

15    1X96;  chartered,  1893;  extended  partially  through  city  of  Nash- 

ville.    See  p.  667.  herein. 
Tennessee  Midland   R.  R.-|  Memphis   Br]     Leased.  September  9.  1896; 

chartered.  1886:  extended   from  Memphis  to  Perrvville,  135.6  miles. 

See  p.  455.  herein. 
•*Paducah  &  Tenn.  R.  R.  of  Ky.—  [Part  of  Paducnh  Br]   Leased.  September 

9,  1896:  ehnrti-n-d.  IK53  4;  extended  from  Pad  uoah,  Ky.,  to  Tennessee 

State  line,  49  miles.    See  p.  487.  herein. 
•'Paducah  &  Tenn.  Ry.  of  Tenn.    [Part  of  Paducah  Br.]    Leased.  Sep- 

tembi-r9.  1896;  chartered,  1888;  extended  from  Tennessee  State  line 

to  within  one  mile  of  Paris,  Tenn.,  1A  miles.    See  p.  487,  herein. 
'Paducah  &  Tenn.  R.  R.  of  Tenn.—  [Part  of  Paducah  Br]    Leased.  Sep.  9, 

l«06:  chartered,  1888:  extended  from  within  one  mile  of  Paris,  Tenn., 

thence  through  Hollow  Rix-k  to  Lexington,  Tenn.,  54  miles.    Seep. 

487  herein. 
Rome  R.  R.   -[Rome  Itr]    I'urotms'-d.  I).  .....  mberSl.  1890;  chartered.  1839;  ex- 

tfiidcd  from  Rome.  (ia..  to  Kingston.  Ua..  18  miles    See  p.  381.  herein. 
Middle   Tenn.   It  Ala.    R.   R.-  Intension   of  Shelhvville   Hr]     Purchased, 

Oct.iU-r  13.  1897;  chartered,  1887:  intended  from  Kayetteville.  Tenn.. 

to  Madison  Cross  Roads.  Ala.,  27.4  miles,  u  ith  line  graded  to  Shelby- 

villi-.  'IVim..  :iti«l  JcfT,  Ala.     See  pp.  406.410.  herein. 

**The  i'adncah  A.  Tenn.  R.  R.  of  Ky.,  tne  Pnducah  .v  Tenn.  Rv.  of  Tenn..  and  the  Padncah  A  Tenn.  R.  R.  of 

'IVnn..  hud  consolidated  into  the  Puducah.  Tenn.  A  Ala.  R.  K.  O>".  In-fore  thc\  \v«-n-  leased  to  the  X.  C.  A  St    I. 
U>      S.-,-  j,  -1ST.  herein. 

(Co    STAT  IONS-  List  of  and  Respective  Distances  In  Miles  from  Nashville.  Tenn.    See  i,sck  of  map. 


LIST  OF  STATIONS—  Continued, 


MEMPHIS  ft  FADUCAH  DI- 
VISION— Continued  . 

**-.        SBfizr 

Dexter                                Kv      Ifin 

BEHUATUHIE   VALLEY   DI- 
VISION —  Continued. 

iint  inns                        MUesfrom 
Nashville. 
South  Pitsburg   -  T«n«    120 

COLUMBIA   I 

Stations. 

UVIBION. 

Miles  from 
Nashville. 

•         Tenn     82 

"       147 

Kimball  

••       isi 

Winchester 

"        86 

"       142 

"       135 

Kasserman    

Hazel  

State  Line  133 

Sequatchie...... 

"       138 

Belvidere  

"        90 

Tenn.  129 

"       142 

Maxwell  

"        94 

Whitlock          

'       123 

Whitwell  

"       146 

Bean's  Creek 

"        96 

Paris    

•       H7 

Shirley  ton  

"       149 

Huntland  . 

"        98 

VauDyke   

'       110 

Condra  

"       152 

Elora  

"       103 

Mansfield           .... 

'       108 

Daus  

'       ]56 

Pliutville  

"       108 

Vale           

'       100 

Dunlap  .. 

'       161 

Brighton  . 

"       110 

'        95 

Mt    Airy  

•       166 

Kelso    

"       114 

Hollow  Rock 

96 

Pailo    

'       168 

Fayetteville 

"       122 

Buena  Vista 

•       101 

College  ..... 

'       172 

It  o  well  

"       129 

West  Port 

'       107 

Lee    

'       175 

Petersburg        ... 

"       135 

Yuma 

'       111 

Pikeville  

'       180 

Talley 

'       138 

Wildersville 

116 

Victoria  

142 

Kelfast  

'       144 

Timberlake      ...  . 

•       121 

Hutton  

•       146 

Lewisburg  

'       150 

Wards 

I  n  man 

147 

South  Berlin  

155 

...          '       127 

TRACY  CITY  BRANCH. 

Silver  Creek  

'       157 

Kryant  

158 

Foster  

i 

Park  

"       160 

'       136 

m     ri      T    '.'.""" 

*  iciiu.       oi 

Hill  

"      1<B 

Lurav  -  

'       139 

"        95 

Coluufbia. 

170 

Beech  Bluff  

'       142 

Mont        1  

"       101 

KIDDLE  TENNESSEE  &  ALA- 
BAMA BRANCH. 

Fayetteville  Tenn.  122 
Harmes  "       127 
Wilson  "       129 
Pearl  City  "       131 

Ranger  

'       144 

"       107 

Alexander  
Rose  Hill    

'       148 
'       151 

SPARTA 
Tullahoma  
Hickerson  
Belmont  
Manchester  
Wayside.  

BRANCH. 
Tenn.    69 
"        75 

"        81 
"        86 

Jackson  
Grover  
Neely  
Denmark  
Mercer  
Hatchie  

'       152 

1«1 
....       '       165 
'       169 
'       172 

Vildo  
Augustus  
Whiteville  
Ina  .    „ 
Laconia  
Somerrille  
Warren  
Oakland  
Hickory  Withe 
Eads  
Lenow  
Cordova  

'       175 
'       177 
•       181 
186 
•       188 
'       195 
201 
205 
209 
213 
'       217 
221 

Morrison  
Smartts  
McMinnville 
Rowland  
Campaigns  
Rock  Island 
Walling  
Holder*  
Ward  
Doyle  
Moores  
Sparta 

'•         94 
•'        99 
"       104 
"       110 
"       114 
"       115 
"       117 
"       119 
"       121 
"       123 
"       127 
"       130 

Taft  »       141 
Norwood  Ala.    144 
Madison  Cross  Roads...      "       149 
Jeff  "       152 

HUNTSVILLE  DIVISION. 

Elora  Tenn.  103 
Plevna  Ala.    108 
New  Market  "       112 

Mullins  
Berclair  
Alta  

Montgomery  Park 
K.  C.  Junction  
Memphis  

222 
226 
228 
231 
233 
235 
"       238 

East  Sparta  
Price  
Rock  House  
Bon  Air  

LEBANON 
Nashville  

"       131 
"       133 
"       135 
"       137 

BRANCH. 
...Tenn        n 

Deposit  

Bell  Factory  
Mercury  
Normal  

Huntsville  
Lily  Flagg  

"       116 
"       11» 
"       123 
"       125 
"       130 
•'       138 

PERRYVILLE 

Lexington  .. 
Bluff  
Chesterfield  

BRANCH. 

Tenn.  127 
'       131 
'       135 

Hobb's  Island 

Lebanon  Junction  "          2 

Easton  
Mill  Creek  
Mud  Tavern  
Donelson  

"           4 
"          5 
"           7 
"           8 

Gunter's  Landing 
Guntersville  
Wyeth  City  
Rayburn  

"       165 
167 

"       169 

Beacon  '       140 
Parsons  •      144 
Perryville  '       151 

SEQTTATCHIE  VALLEY 
DIVISION. 
Bridgeport  Ala.    123 

Tulip  Grove 
Green  Hill  
Mt.  Juliet  
Silver  Springs... 

"         11 
"        13 
"         16 
"         18 
"         22 

Lane  Switch  
Albertville  
Boaz  

Mountainboro  
Carlisle 

"       173 
'       177 
'       182 
'       186 
'       188 

Leeville  

"         24 

Sli"0 

'          1Q1 

Tucker's  Gap  .  . 
Lillard  

"         26 

Littleton  
Attalla. 

'       192 
'       197 

Copenhagen  

Tenn.  126 

Lebanon  

"         31 

Gadsden  

•       203 

CONTENTS. 


PLATE  I. 

Map  showing  the  main  line  and  branches,  and  mileage  of  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  and  list  of  branches  in 
order  of  their  acquisition 

PLATE  II. 

List  of  stations  on  entire  system,  with  their  respective  distances  in 
miles  from  Nashville.  Tenn 

CHAPTER  I. 

Original  charter  of  Nashville  &  Chattanooga  Railroad  Company 
(annotated),  and  how  name  changed 1 

CHAPTER  II. 

Acts  and  decrees  amending  original  charter,  and  relating  to  main 
stem  in  Tennessee,  Alabama,  and  Georgia.  Also  charter  of  Hi- 
wassee  Railroad  Company 25 

CHAPTER   III. 

Nashville  &  Northwestern  Railroad  (Northwestern  Branch) — How 
acquired — What  franchises  passed — Width  of  right  of  way — Dis- 
tance built  when  purchased — Original  charter  (annotated) 76 

CHAPTER  IV. 

Acts  and  decrees  amending  charter  of  and  relating  to  Nashville  «fe 
Northwestern  Railroad  in  Tennessee  and  Kentucky.  Also  char- 
ter of  Hickman  &  Obion  Railroad  Company  (annotated) 100 

CHAPTER  V. 

Tennessee  «fe  Pacific  Railroad  Company  (Lebanon  Branch) — How 
acquired — What  franchise  passed — Width  of  rightof  way — Where 
incorporated — Distance  built  when  purchased — Original  charter 
(annotated  ) 120 

CHAPTER  VI. 
Deed  to  and  acts  relating  to  Tennessee  A  Pacific  Railroad  Company     143 


X  CONTENTS. 

CHAPTER  VII. 

Winchester  &  Alabama  Railroad  (part  of  Fayetteville    Branch)— 
How  acquired— What  franchises  passed— Width  of  right  of  way— 
Where  incorporated — Distance  built  when  purchased — Original 
charter   (annotated) 152 

CHAPTER  VIII. 
Deed  to  and  acts  relating  to  Winchester  &  Alabama  Railroad 158 

CHAPTER  IX. 

McMinnville  &  Manchester  Railroad  (part  of  McMinnville  Branch) 
— How  acquired — What  franchises  passed — Width  of  rightof  way — 
Termini — Distance  built  when  purchased — Original  charter  (anno- 
tated)  - 168 

CHAPTER  X. 

Decrees  and  acts  relating  to,  and  amending  charter  of,  McMinnville 
&  Manchester  Railroad  Company 183 

* 
CHAPTER  XI. 

Southwestern  Railroad  (part  of  McMinnville  Branch) — How  acquired 
— Width  of  right  of  way — Distance  built  when  purchased — Original 
charter  (annotated) 492 

CHAPTER  XII. 
Acts  relating  to  Southwestern  Railroad  Company 197 

CHAPTER  XIII. 

Bon  Air  Railway  (extension  of  McMinnville  Branch) — How  acquired 
— What  franchises  passed — Width  of  right  of  way — Distance  built 
when  purchased — Original  charter  (annotated) 199 

CHAPTER  XIV. 
Deed  to  Bon  Air  Railroad 211 

CHAPTER  XV. 

Huntsville  &  Elora  Railroad  (Huntsville  &  Elora  Branch) — How  ac- 
quired— What  franchises  passed — Width  of  right  of  way — Where 
incorporated — Distance  built  when  purchased — Original  charter 
(annotated) 214 

CHAPTER  XVI. 
Deed  to  and  acts  relating  to  Huntsville  &  Elora  Railroad..  224 


CONTENTS.  XI 

CHAPTER  XVII. 

Nashville  &  Tuscaloosa  Railroad  (Centreville  Branch) — How  ac- 
quired— What  franchises  passed— Width  of  right  of  way — Dis- 
tance built  when  purchased — Showing  Swan  Creek  and  Allen's 
Creek  extensions — Original  Charter  (annotated)  .. 227 

CHAPTER  XVIII. 

Deed  to  Nashville  &  Tuscaloosa  Railroad,  and  road  from  Kimmins 
toMannie,  on  Allen's  Creek.., 241 

CHAPTER  XIX. 

Duck  River  Valley  Narrow  Gauge  Railroad  (Columbia  Branch — How 
acquired — What  franchises  passed — Width  of  Right  of  way — Dis- 
tance built  when  purchased — Where  road  chartered — Termini — 
Original  charter 250 

CHAPTER  XX. 
Deed  to  Duck  River  Valley  Narrow  (Jauge  Railroad 258 

CHAPTER  XXI. 

Sequatchie  Valley  Branch  (composed  of  Jasper,  Pikeville,  and  Inman 
Branches) — How  acquired — Width  of  right  of  way  of  each — Orig- 
inal charters  (annotated — Acts  relating  to 264 

CHAPTKR   XXII. 

Deeds,  acts,  etc.,  relating  to  Sequatchie  Valley  Branch,  including 
the  Jasper,  Pikeville,  and  Inman  Branches 270 

CHAPTER  XXIII. 

Tracy  City  Branch  (Sewanee  Branch) — How  acquired — Width  of 
right  of  way — Distance  built  when  purchased — What  franchises 
passed 277 

CHAPTER  XXIV. 
Deed  to  Tracy  City  Branch 280 

CHAPTER  XXV. 

Shelbyville  Branch — How  acquired — Width  of  right  of  way — When 
built 286 

CHAPTER  XXVI. 

Tennessee  &  Coosa  Railroad  (Oadsden  Branch) — How  acquired — 
What  franchises  passed — Distance  built  when  purchased — Width 
of  right  of  way — Previous  conveyance — Original  charter  (anno- 
tated)   287 


XII  CONTENTS. 

CHAPTER  XXVII. 
Deed  to  and  acts  relating  to  Tennessee  &  Coosa  Railroad 298 

CHAPTER  XXVIII. 

West  Nashville  Railroad  (West  Nashville  Branch) — How  acquired — 
What  franchises  passed — Width  of  right  of  way — Original  charter 
(annotated) 318 

CHAPTER  XXIX. 
Deed  to  West  Nashville  Railroad "  330 

CHAPTER  XXX. 

Western  &  Atlantic  Railroad  (or  Branch) — How  acquired — When 
road  built — Width  of  right  of  way — Nature  of  company's  control 
of — Act  authorizing  lease  of,  and  incorporating  lessees  (anno- 
tated)   335 

CHAPTER  XXXI. 

Lease  contract — Lease  of  rolling  stock,  etc.,  received,  and  acts  of 
Georgia  and  Tennessee  relating  to  Western  &  Atlantic  Railroad  .  348 

CHAPTER  XXXII. 

Rome  Railroad  (Rome  Branch) — How  acquired — What  franchises 
passed — Width  of  right  of  way — Distance  built  when  purchased — 
Original  charter  (annotated) 379 

CHAPTER  XXXIII. 

Deed  to  and  acts  of  Georgia  relating  to  Rome  Railroad  and  amend- 
ments to  charter  of 390 

CHAPTER  XXXIV. 

Middle  Tennessee  &  Alabama  Railroad  (extension  of  Shelbyville 
branch),  how  acquired,  what  franchises  passed,  distance  road 
built  when  purchased,  width  of  right  of  way,  original  charters  in 
Tennessee  and  Alabama  (annotated) 406 

CHAPTER  XXXV. 

Deed  to  and  acts  relating  to  Middle  Tennessee  &  Alabama  Railway 
(formerly  D.  C.  &  N.  O.  Ry.) 435 

CHAPTER  XXXVI. 

Chattanooga  Terminal  Railway — How  acquired — Distance  built 
when  leased —  Width  of  right  of  way — Original  charter  (annotated .  448 

CHAPTER  XX  XVII. 
Lease  contract  of  Chattanooga  Terminal  Railway 451 


CONTENTS.  XIII 

CHAPTER  XXXVIII. 

Tennessee  Midland  Railway  (Memphis  Branch) — How  acquired — 
Distance  built  when  leased — Width  of  right  of  way — Original 
charter  (annotated) 455 

CHAPTER  XXXIX. 

Temporary  and  permanent  lease  of  Tennessee  Midland  Railroad 
and  Paducah.  Tennessee  &  Alabama  Railroad 472 

CHAPTER  XL. 

Paducah,  Tennessee  &  Alabama  Railroad  (Paducah  Branch) — How 
acquired — Distance  built  when  leased — Where  company  char- 
tered— Width  of  right  of  way — Original  charter  in  Tennessee  and 
Kentucky  of  the  three  roads  composing  it  (annotated) 487 

CHAPTER  XLI. 

Lease,  deed,  and  acts  relating  to  and  amending  charter  of  Paducah, 
Tennessee  &  Alabama  Railroad  Company  and  original  companies 
from  which  it  was  formed 520 

CHAPTER  XLII. 

Lease  by  N.,  C.  &  St.  L.  Ry.  to  L.  &  N.  R.  R.  Co.  of  tracks  from  Louis- 
ville &  Nashville  Railroad  Company's  old  depot  in  Nashville  to 
Decatur  depot 533 

CHAPTER  XLIII. 

Lease  of  joint  use  of  track  from  Stevenson,  Ala.,  to  Chattanooga, 
Tenn.,  to  Memphis  &  Charleston  Railroad  Company,  now  owned 
by  the  Southern  Railway 543 

CHAPTER  XLIV. 

Lease  of  joint  use  of  track  of  Western  &  Atlantic  Railroad  at  Dai- 
ton,  Ga.,  to  East  Tennessee,  Virginia  &  Georgia  Railway  Com- 
pany, now  owned  by  Southern  Railway 548 

CHAPTER  XLV. 

Lease  of  joint  use  of  track  between  Wauhatchie  and  Chattanooga 
to  the  Alabama  Great  Southern  Railroad  Company 550 

CHAPTER  XLVI. 

Lease  to  Seaboard  Air  Line  Belt  Railroad  Company  of  terminal  fa- 
cilities at  Atlanta,  Ga.,  for  itself  and  Georgia,  Carolina  &  North- 
ern Railway,  and  contract  for  interchange  of  business  by  and 
with  Nashville,  Chattanooga  &  St.  Louis  Railway 554 


XIV  CONTENTS. 

CHAPTER  XLVII. 

Louisville  &  Nashville  Terminal  Company  property  (at  Nashville) 
— Property,  how  acquired — Original  charter  of  (annotated) 557 

CHAPTER  XLVI1I. 

Lease  from  Louisville  &  Nashville  Terminal  Company  to  Nashville, 
Chattanooga  &  St.  Louis  Railway  and  Louisville  &  Nashville  Kail- 
road  Company  of  terminal  facilities,  properties,  etc.,  at  Nashville  566 

CHAPTER  XLIX. 

Consolidated  mortgage  of  Nashville.  Chattanooga  &  St.  Louis  Rail- 
way to  secure  the  issue  of  $20,000,000  five  per  cent,  gold  coupon 
bonds  of  $1,000  each — Other  mortgages  (annotated) 596 

CHAPTER  L. 

General  powers,  including  Abandonment,  Bills,  Notes,  Acknowl- 
edgment, Agreement,  Alter  Gauge 627 

CHAPTER  LI. 

Power  to  borrow  money,  issue  bonds,  indorse  bonds,  and  subscribe 
stock  in  other  companies,  etc 630 

CHAPTER  LII. 

Power  to  build  branch  roads,  side  and  spur  tracks,  etc 636 

CHAPTER  LIII. 

Power  to  build  and  repair  bridges — How  bridge  at  Johnson ville  and 
Bridgeport  constructed,  and  law  relating  to 642 

CHAPTER  LTV. 

By-laws — How  and  by  whom  to  be  enacted  and  amended — What  are 
legal — Present  by-laws  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way   644 

CHAPTER  LV. 

Capital  stock — Amount — Value  of  shares — How  to  be  transferred — 
Liability  of  company  for  illegally  transferring — How  to  be  in- 
creased— Vote,  etc.,  necessary — Kinds  of — Duty  of  company  to 
investigate  before  transferring  shares  of  certain  kinds,  etc. — 
Power  to  purchase  in  other  companies,  etc 665 

CHAPTER  LVI. 

Charter — How  amended — Franchise  of — What  may  be  disposed  of — 
Chancery  court  amendments  to — Grounds  of  forfeiture  of..  677 


CONTENTS.  XV 

CHAPTER  LVII. 
Connections  with  and  by  other  roads — Condemnation  of,  etc.  -„ 699 

CHAPTER  LV1II. 

Consolidation — Terms  and  conditions,  by  and  with  other  roads,  etc.     703 

CHAPTER  LIX. 
Contracts — What  may  be  made — How  corporate  name  signed,  etc...     706 

CHAPTER  LX. 
Corporate  name — How  changed  and  to  be  changed,  etc 709 

CHAPTER  LXI. 

Crossings — Power  to  cross  other  railroads,  highways,  water  courses, 
etc. — Conditions — Gates,  stock  gaps,  etc.,  at — Right  of  cities  and 
counties  to  build  streets,  roads,  and  alleys  across  Nashville,  Chat- 
tanooga «fe  St.  Louis  Railway,  etc 710 

CHAPTER  LXII. 
Demurrage — Power  to  charge 721 

CHAPTER  LXIII. 

Directors — How  and  when  elected — Qualification  of — Board  meet- 
ings— Powers,  duties,  etc 721 

CHAPTER  LXIV. 

Dissolution  of — How  dissolution  may  be  effected — Directors  trustees 
in  case  of,  etc 733 

CHAPTER  LXV. 
Dividends — When  and  to  whom  paid — Kinds  of ,  etc 734 

CHAPTER  LXVI. 

Eminent  domain — Rights  of— In  whose  name  to  be  done — Nature  of 
railway's  ownership  of  right  of  way — Right  of  others  to  condemn 
property  of  this  company — Width  of  right  of  way — statute  of 
limitations  as  against — successive  appropriation,  etc 736 

CHAPTER  LXVIII. 

Fences — Cattle  guards — What  are  legal — How,  when,  and  in  what 
states  to  be  erected 808 

CHAPTER  LXIX. 

Freight  charges — What  may  be  charged — What  on  branch  roads — 
discriminations — Sale  of  freight  for  charges 819 


XVI  CONTENTS. 

CHAPTER  LXX. 

Leases — Power  of  this  company  to  lease  other  roads — To  lease  its 
own  road — Vote  necessary — Who  to  act  upon — Lease  of  rolling 
stock,  etc 830 

CHAPTER  LXXI. 

Mortgages — Power  to  in  various  states — What  may  be — Who  to  au- 
thorize— Vote  necessary 862 

CHAPTER  LXXII. 
President — How  chosen — Qualifications — Powers,  etc 876 

CHAPTER  LXXIII. 

Purchase  of  other  roads,  franchises,  real  estate,  rolling  stock, 
bridges,  etc. — Who  to  authorize — Vote  necessary 878 

CHAPTER  LXXIV. 

Rules  and  regulations — what  are  legal — who  to  enact — How  differ 
from  by-laws 899 

CHAPTER  LXXV. 

Sales — Power  to  sell  railroad,  rolling  stock,  franchises,  etc. — Who 
to  authorize 904 

CHAPTER  LXXVI. 

Stations — Power  of  company  to  abandon — Rules  and  regulations 
concerning.. 914 

CHAPTER  LXXVII. 

Stockholders — Meetings  —  Notice  of — Quorum — Voting  —  Qualifica- 
Qtion  for — Who  may  vote — Elections  and  laws  affecting  generally.     915 


PART  I. 

ORIGINAL  CHARTER,  AMENDMENTS  AND  ACTS 


RELATING    TO    THE 


NASHVILLE,  CHATTANOOGA  &  ST.  LOUIS  RAILWAY 

AND    POSSESSIONS. 


CHAPTER   I. 

ORIGINAL    CHARTER    OF    THE    NASHVILLE    &    CHATTANOOGA 
RAILROAD  COMPANY— ACTS  TENN.,  184Z-G,  CHAP.  1. 

SECTION  i.   Incorporation,  name,  general  powers.—^  it 

enacted  by  the  General  Assembly  of  the  State  of  Tennessee,   That 
for  the  purpose  of  establishing  a  communication  by  railroad 
between  Nashville  and  Chattanooga,  the  formation  of  a  com- 
pany is  hereby  authorized,  which,  when  formed,  shall  be  a  body 
corporate,   by  the  name  and  style  of  "The  Nashville  &  Chat- 
tanooga Railroad  Company,"  *  and  by  said  corporate 
name  shall  be  capable  in  law  to  buy,  receive  by  gift, 
hold,  sell,  and  convey  real  and  personal  estate,  as  hereinafter 
provided,  make  contracts,  sue  and  be  sued,  to  make  by-laws, 
and  to  do  all  lawful  acts  properly  incident  to  a  cor-  CeBertlt 
|K>ration,  and  necessary  and  proper  to  the  transaction  *°wers- 
of  the  business  for  which  it  is  incorporated,  and  to  have  and 
use  a  common  seal,  and  the  same  to  alter  and  destroy  at  its 
pleasure,  and  shall  have  perpetual  succession  of  members. 

1.  *Name,  when  and  how  changed. — The  corporate  naine  was  changed 
to  the  Nashville,  Chattanooga  &  St.  Louis  Railway  May  30,  1873,  by  a 
decree  of  the  chancery  court  at  Nashville,  under  the  Acts  of  1870-1,  Ch. 
54,  p.  63  (see  minute  book  "X,"  pp.  220-2),  which  decree  is  inserted  in 
this  compilation.  See  next  chapter. 

This  was  clearly  within  the  power  of  the  chancery  court  at  that  time 
under  said  acts.  1  Tenn.  Chy.  Rep.,  pp.  83,  95,  97;  3  Bax.,  98.  See,  also, 
1 


2  ORIGINAL    CHARTER    OF    THE 

12  Lea,  97,  103;  11  Lea,  3;  9  Lea,  380;  1  Lea,  462.     The  power,  however, 
has  since  been  withdrawn. 

2.  By-laws. — An  amendment  to  the  charter  was  subsequently  passed 
allowing    the   directors,   and   not  the  stockholders,   to  make  by-laws. 
Acts  Tenn.  1847-8,  Ch.  70. 

3.  f  General  powers. — The  general  powers  of  the  corporation  have 
been  greatly  enlarged  by  amendments  to  the  charter  and  the  passage  of 
g-eneral  laws.     These  powers  are  fully  set  out  and  discussed  further  on. 
Hy  referring  to  the  index  a  discussion  of  any  particular  power  now  pos- 
sessed may  be  found. 

4.  Incorporation, — This  railway  has  never  been  chartered  in  any  state 
save  Tennessee.     It  has  purchased  and  now  owns  roads,  however,  that 
were  chartered  in  other  states.     See  index  for  road  desired. 

5.  Lease. — This  section  was  amended  by  Acts  Tenn..  1857-8,  Ch.  8,  so 
as  to  authorize  the  company  to  lease  the  Winchester  &  Alabama  Railroad 
and  the  branch  to  Fayetteville,  or  nn\i  other  railroad  connecting  with  said 
Nashville  &  Chattanooga  Railroad,  for  such  time  and  upon  such  terms 
and  conditions  as  may  be  agreed  upon  between  the  president  and  directors 
of  the  said  Nashville  &  Chattanooga  Railroad  Company  and  the  presi- 
dent and  directors  of  the  railroad  company  contracted  with.     See  index 
for  right  to  lease. 

5.  Chancery  Court  amendment. — This  section  was  also  amended  by 
decree  of  chancery  court  at  Nashville.  May  13.  1872,  per  minute  book 
"V,"  p.  174.  so  as  to  allow  the  company  to  purchase  or  lease  other  roads, 
and  issue  bonds  therefor;  to  subscribe  for  stock  in  other  corporations 
and  issue  bonds  therefor;  and  to  indorse  and  guarantee  bonds  of  other 
companies,  etc.  See  decree  itself  herein;  refer  to  index.  See  also  dis- 
cussion of  vnlUUty  of  chancery  court  amendments  herein;  refer  to  index. 

SEC.  2.  Capital,  value  of  shares,  books  opened,  commis- 
sioners.— Books  for  subscription  of  sixty  thousand  shares  of 
the  capital  stock  of  said  company,  of  twenty-five  dollars  each,* 
shall  be  opened  on  the  first  Monday  in  January,  1846,  and 
shall  be  kept  open  for  six  days,  between  the  hours  of  10  o'clock 
Books  opened  m  *ne  mormng  and  ^  o'clock  in  the  evening  of  each 
of  those  days,  at  the  following  places  and  by  the  fol- 
lowing commissioners,  to  wit: 

At  Nashville,  by  James  Overton,  John  M.  Hill,  George  W. 
Martin,  Thomas  Washington,  John  Shelby,  Godfrey  M.  Fogg, 
Commis-  John  W.  Walker,  Jacob  McGavock,  J.  Hugh  Smith, 
W.  W.  Wroodfolk,  A.  W.  Vanleer,  Samuel  WTatkins, 
Thomas  Wells,  John  Thompson,  Joseph  B.  Knowles,  James 
Erwin,  Felix  R.  Rains,  Pleasant  Smith,  J.  J.  Gill,  John  Nichol, 
West  H.  Humphreys,  R.  J.  Meigs,  A.  V.  S.  Lindsley,  Alex- 
ander Allison,  and  Robert  I.  Moore. 

At  Gallatin,  by  James  A.  Blakmore,  Elijah  Boddie,  Henry 
B.  Vaughn,  Daniel  S.  Donelson,  S.  R.  Anderson,  and  William 
M.  Blakemore. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY. 

At  Shelbyville,  by  Robert  Matthews,  George  Davidson, 
Thomas  Dean,  John  Eakin,  and  W.  C.  Swanson. 

At  Gainsborough,  by  Thomas  L.  Bransford,  Watson  M. 
Cooke,  Samuel  E.  Hare,  and  Richard  P.  Brooks. 

At  Lebanon,  by  Paulding  Anderson,  R.  L.  Caruthers,  and 
Calvin  Jackson. 

At  McMinnville,  by  George  R.  Smartt,  William  Black, 
Jesse  Locke,  Philip  Hoodenpyl,  and  L.  1).  Mercer. 

At  Franklin,  by  Thomas  Parks,  William  Park,  Nicholas  Per- 
kins, Samuel  Crockett,  and  Robert  C.  Foster. 

At  Murfreesboro,  by  Charles  Ready,  Edwin  A.  Keeble, 
Harman  Spence,  Lewis  Garner,  and  L.  H.  Carney. 

At  Sparta,  by  James  Snodgrass,  John  Warren,  and  Wrilliam 
M.  Young. 

At  Fayetteville,  by  John  Clark,  Jr.,  John  M.  Bright,  Robert 
Farguharson,  William  T.  Ross,  James  Fulton,  and  William 
Bonner. 

At  Pulaski,  by  Andrew  M.  Ballentine,  Thomas  Martin,  and 
Benjamin  Carter. 

At  Winchester,  by  Benjamin  Dechard,  Mark  Hutchins, 
James  Harris,  James  Sharp,  Thomas  Wilson,  and  C.  C. 
Garner. 

At  Chattanooga,  by  Robert  M.  Hook,  Benjamin  Chandler, 
and  John  P.  Long. 

At  Jasper,  by  Jackson  Pryor,  Daniel  R.  Ruwlings,  and  John 
Harriford. 

At  Lewisburg,  by  Benj.  Williams,  Ephraim  Hunter,  James 
V.  Ewing,  Morgan  Fit/patrick,  and  Henry  Harding. 

1.  *  Value  of  shares  changed. — The  value  of  a  share  of  stock  was 
originally  825.  Hy  Acts  1889,  ch.  102,  all  corporations  •'  hereafter  created 
or  hereafter  to  be  created  "  under  the  laws  of  the  State  of  Tennessee,  were 
allowed  to  make  a  share  of  stock  8100  or  less,  and  issue  certificate  there* 
for.  Secondly,  that  any  such  corporation  which  has  heretofore  issued 
shares  of  stock  for  825,  may  call  in  the  same  and  combine  four  such 
shares  and  issue  a  certificate  for  $100  in  lieu  thereof. 

Under  this  act  the  Nashville,  Chattanooga  »fe  St.  Louis  Railway  issued 
new  certificates  for  8100  each,  as  provided  above,  in  place  of  the  original, 
as  per  resolution  adopted  May  30,  1889. 

The  above  clause,  •'  hereafter  created  or  hereafter  to  be  created,'1  evi- 
dently was  intended  for  "  heretofore  created  or  hereafter  to  be  created." 
The  act  has  been  compared  with  the  enrolled  copy  in  the  secretary  of 
state's  office,  and  found  to  contain  the  same  mistake. 


4:  ORIGINAL   CHARTER    OF    THE 

2.  Capital  increased,  how. — See  ?  17  of  this  charter;  see,  also,  index. 
The  capital  stock  was  increased  to  $10,000,000  at  the  annual  meeting  of 
stockholders,  June  30,  1891. 

SEC.  3.  Subscriptions  to  StOCk,  payment.— The  said  com- 
missioners, or  a  majority  of  them,  at  each  of  the  places  afore- 
said, shall  receive  subscription  for  stock  in  the  said  railroad 
company  during  the  time  the  said  books  are  directed  to  be  kept 
open,  and  on  each  share  so  subscribed  shall  demand  and  receive 
the  sum  of  fifty  cents,  without  which  the  subscription  shall  be 
void. 

The  original  capital  stock  of  the  Nashville  &  Chattanooga  Railroad 
Company  was  subscribed  as  follows: 

By  the  city  of  Nashville $  500,000  00 

By  the  city  of  Charleston,  S.  C 500,000  00 

By  the  Georgia  Railroad... ._ 250,000  00 

By  the  town  of  Murfreesboro 30,000  00 

By  individuals. 806,912  50 

Total $2,086,912  50 

SEC.  4.  Deposit  of  money,  commissioners,  incorporation 

perfected,  When. — As  soon  as  the  time  for  receiving  subscrip- 
tions as  aforesaid  shall  have  expired,  the  said  commissioners 
shall,  respectively,  deposit  all  the  money  so  received  by  them 
in  some  incorporated  bank,  redeeming  its  notes  in  specie,  to  the 
credit  of  the  Nashville  &  Chattanooga  Railroad  Company,  and 
subject  to  the  order  of  the  president  of  the  board  of  commis- 
sioners hereinafter  appointed,  and  shall  also  forward  a  correct 
list  of  all  the  subscribers  to  the  said  stock,  with  the  number  of 
shares  each  subscriber  has  taken,  to  a  board  of  commissioners, 
to  be  composed  of  the  following  persons:  Jno.  M.  Bass,  Jno. 
commission-  M-  Hill>  Francis  B.  Fogg,  Andrew  Ewing,  A.  O.  P. 
ers-  Nicholson,  V.  K.  Stevenson,  Jno.  Bell,  Willoughby 

Williams,  William  Nichol,  S.  D.  Morgan,  Jos.  T.  Elliston,  Jos. 
W.  Horton,  Jas.  A.  Porter,  Jas.  Overton,  and  Jno.  Shelby, 
who  may  establish  rules  to  govern  their  proceedings,  choose 
their  own  president,  and  appoint  such  other  officers  and  agents 
as  they  may  think  proper,  and  prescribe  their  duties,  and  who, 
TO  meet  at  or  a  maj°rity  of  whom,  shall  meet  at  Nashville  on 
hashvme.  tne  third  Monday  in  January  next,  ascertain  the 
whole  number  of  shares  taken  in  the  said  company,  and  publish 


NASHVILLE,    CHATTANOOGA    &    ST.     LOUIS    RAILWAY.  5 

the  same  in  some  newspaper  printed  in  Nashville,  on  or  l>efore 
the  fourth  Monday  in  January  next;  and,  if  the  number  of  four 
thousand  shares  shall  have  been  subscribed,  on  each  of  which 
there  shall  have  been  paid  the  sum  of  fifty  cents,  the  Nashville 
&  Chattanooga  Railroad  Company  shall  be  regarded  at  formed, 
and  thenceforth  and  from  the  day  of  the  closing  of  the  l>ooks 
of  subscription,  as  aforesaid,  the  said  subscribers  to  the  stock 
shall  form  a  body  politic  and  corporate  indeed  and  incorpora- 
in  law,  by  the  name  and  for  the  purpose  aforesaid,  ed  when, 
and  in  all  things  to  be  represented  by  the  hoard  of  commission- 
ers aforesaid,  until  the  election  of  a  board  of  directors,  as  here- 
inafter prescribed. 

First  board. — The  first  board  of  directors  were  elected  January  24, 
1848.  Previous  to  that  time  the  corporation  had  been  managed  by  the 
board  of  commissioners. 

SEC.  5.  Books  kept  open  when,  incorporation,  commis- 
sioners.— If  on  closing  the  books  aforesaid  the  number  of  four 
thousand  shares  shall  not  have  been  subscribed,  then  and  in 
that  case  the  said  board  of  commissioners,  by  themselves  or 
their  agents,  may  receive  subscriptions  till  the  number  of  four 
thousand  shares  be  taken,  and  whenever  that  number  of  shares 
shall  be  subscribed,  the  company  shall  be  considered  as  formed, 
as  having  a  corporate  existence,  as  aforesaid,  and  of 
which  notice  shall  be  given,  as  hereinbefore  directed, 
and  may  proceed  to  survey  the  route  for  the  road,  and  make 
an  estimate  of  the  cost  of  its  construction.  Nevertheless,  no 
conclusive  and  binding  location  of  the  road  shall  l>e  power  of 
made  by  the  board  of  commissioners,  but  the  same  sioners. 
be  left  to  the  determination  of  the  first  hoard  of  directors  chosen 
by  the  stockholders.  And  the  said  board  of  commissioners 
may>  by  themselves  or  their  agents,  at  such  time  and  places  as 
they  may  think  proper,  and  upon  such  terms  as  to  time  and 
manner  of  payment  as  they  may  deem  expedient,  receive  addi- 
tional subscriptions  until  the  number  of  forty  thousand  shares 
shall  have  been  subscribed,  upon  which  the  company  may  be 
formed,  and  the  subscribers  shull  thenceforth  form  a  body  cor- 
porate, as  aforesaid;  Provided,  The  same  shall  be  done  on  or 
before  the  first  day  of  January,  1848;  and  for  the  residue  of 


6  ORIGINAL    CHARTER    OF    THE 

the  original  numl>er  of  sixty  thousand  shares  the  said  corpora- 
tion, when  organized,  may  in  like  manner  receive  additional 
subscriptions. 

SEC.  6.  Reduction  Of  Shares. — In  case  more  than  sixty  thou- 
sand shares  shall  have  been  subscribed  on  closing  the  books 
when  they  are  first  opened,  the  shares  shall  be  reduced  to  that 
number  by  deducting  the  surplus  shares  from  the  highest  sub- 
scribers, placing  them  on  an  equality  of  numbers,  as  far  as 
can  be  done;  and,  after  such  reduction,  the  holders  of  the  re- 
maining shares  shall  form  the  company,  and  be  interested 
therein  in  proportion  to  the  number  of  shares  which  they  may 
then  respectively  hold. 

SEC.  7.  Money  returned  if  shares  not  subscribed.— if,  on 

closing  the  books  on  the  first  day  of  January,  1848,  the  num- 
ber of  forty  thousand  shares  shall  not  have  been  subscribed, 
the  money  paid  by  each  subscriber  shall  be  returned  to  him  by 
the  said  board  of  commissioners,  after  defraying  the  expenses 
of  opening  the  books  and  making  a  survey  and  map  of  the  route, 
and  estimate  -of  the  cost  of  the  road,  which  the  said  commission- 
ers are  hereby  authorized  to  have  made  as  soon  as  practicable. 

SEC.  8.  President  and  directors,  how  chosen.— The  affairs 

of  said  company  shall  be  managed  by  a  board  of  directors,  to 
consist  of  fifteen,  who  shall  be  chosen  by  the  stockholders  from 
their  own  body,  and  a  president  of  the  company  shall  be  elected 
by  the  directors  from  among  their  own  members,  in  such  man- 
ner as  the  regulations  of  the  corporation  shall  prescribe. 

1.  Section  amended. — This  charter  was  amended  by  Acts  Tenn.,  1849- 
50,  ch.  C'CLXVL,  so  as  to  allow  the  city  of  Charleston,  S.  C.,  to  appoint 
two  of  her  citizens  to  represent  her  stock  in  this  company  as  directors. 
The  same  act  also  amended  the  charter  so  as  to  allow  the  Georgia  Rail- 
road &  Hanking1  Co.  to  appoint  one  director  to  represent  its  stock. 

2.  Number  of  directors. — By  Acts  Tenn.,  1868-9,  ch.  23,  all  railroads, 
by  majority  vote,  were  allowed  to  reduce  their  directors  to  a  number 
not  less  than  six.  and  such  vote  became  amendment  to  charter.     Again, 
by  Acts  1859-60.  ch.  202,  authority  was  given  to  reduce  the  number  to 
nine,  where  State  aid  granted  and  company  agreed.     Again,  by  Acts 
Tenn.,  1881,  ch.  119  (Code,  M.  &  V..  §1702),  all  private  corporations  were 
allowed  to  increase  or  diminish  the  number  of  directors  to  any  number 
not  less  than  five,  upon  a  vote  of  the  stockholders  representing  three- 
fourths  of  the  capital  stock. 

None  of  these  acts  have  been  accepted,  however,  and  the  number  of 
directors  still  remains  fifteen. 

3.  First  board  of  directors.— The  first  board  of  directors  were  elected 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  7 

January  24,  1848.     Previous  to  that  time  the  affairs  of  the  company  were 
managed  by  the  commissioners. 

4.  General  powers. — A  general  power  granted  directors  to  manage 
the  affairs  of  the  incorporation  includes  the  power  to  borrow  money, 
make,  accept,  or  assign  negotiable  paper,  etc.,  in  the  couree  of  business 
of  the  corporation.     Thompson  on  Corp.,  sees.  3988-9;  9  Heis.,  524,  533;  11 
Hum..  22;  7  Heis.,  288;  2  Cold.,  655;  9  Hum.,  264;  6  Hum.,  516. 

5.  For  method  of  electing  president  and  directors,  together  with  their 
powers,  qualifications  for  office,  etc.,  see  index.     See  also  sees.  18,  19  of 
charter. 

SEC.  9.  Stockholders'  first  meeting,  directors'  election,  by- 
laws— how  enacted. — As  soon  as  the  number  of  forty  thousand 
shares  shall  have  been  subscribed,  it  shall  be  the  duty  of  the 
commissioners  appointed  to  declare  the  same,  to  appoint  a  time 
for  the  stockholders  to  meet  in  Nashville,  and  give  Meetln-  at 
notice  thereof  by  publication  in  some  of  the  news-  N*snvl'le- 
papers  of  Nashville,  at  which  time  and  place  the  said  stock- 
holders,  in  person  or   by  proxy,  shall    proceed    to  Directors, 
elect  the  directors  of  the  company,  and  to  enact  all  and  powers, 
such  regulations,  rules,  and  by-laws  as  may  be  necessary  for  the 
government  of  the  corporation  and  the  transaction  of  By  laws, 

how 

its  business.     The  persons  elected  directors  at  this  enacted, 
meeting  shall  serve  for  such  period,  not  exceeding  one  year,  as 
the  stockholders  may  direct;  and  at  this  meeting  the  stockholders 
shall  fix  on  the  day  and  place  or  places  where  the  subsequent 
election  of  directors  shall    be    held;    and   such  elections  shall 
thenceforth  be  annually  made.      But  if  the  day  of  annual  elec- 
tion should  pass  without  any  election  of  directors,    corporation 
the  corporation  shall  not  thereby  be  dissolved,  but  by  failure  of 

annual  dec 
it  shall  be  lawful  on  any  other  day  to  hold  and  make  tion. 

such  elections  in  such  manner  as  may  be  prescribed  by  a  by-law 
of  the  corporation. 

1.  Section  amended,  by-laws,  elections. — This  section  was  amended 
by  Acts  1847-48,  ch.  70,  and  accepted  by  company,  so  as  to  confer  upon 
thr  illrecttirH,  instead  of  the  stockholders,  the  power  to  make  "  rules,  reg- 
ulations, and  bjr-laws,"  and  to  empower  directors  to  appoint  three  judges 
and  two  clerks,  from  year  to  year,  for  purpose  of  holding  election  of 
directors. 

2.  By-laws. — Though  by-laws  provide  for  stated  meetings,  directors 
may  hold  special  or  informal  meetings,  and  their  actions,  when  recorded, 
are  legal  and  binding.     9  Heis.,  545. 

3.  Meetings. — Directors  may  hold  meeting  out  of  state,   and  legal. 
Rorer  on  R.  R.,  p.  211;  Thomp.  on  Corp.,  §  3933;  45  Ga..  34;  34  N.  Y.,  208. 

4.  Section  amended.— By   Acts  of   1857-58,  ch.   8,   this  charter  was 


ORIGINAL    CHARTER    OF    THE 

amended  so  that  the  stockholders  could,  at  any  meeting,  fix  on  the  day 
and  place  where  subsequent  meetings  of  stockholders  and  election  of 
directors  shall  be  held. 

5.  By-laws.— The  by-laws,  orders,  and  resolutions  adopted  by  a  rail- 
road company  or  its  stockholders  are  always  under  the  control  of  the 
majority,  unless  expressly  provided  otherwise  by  the  charter,  and  may 
be  repealed,  altered,  or  modified  from  time  to  time  by  the  majority.     5 
Sneed,  566-568. 

6.  See  Acts  1868-69,  ch.  27  (§  1238  M.  &  V.  Code),  for  f/eneraUaw  in  ref- 
erence to  election  of  directors,  when  proper  officers  refuse  or  neglect  to 
call  meeting  for  same,  inserted  herein.     See  index. 

1.  For  qualifications,  elections,  liability,  etc.,  of  directors,  and  pas- 
sage of  by-laws,  see  index. 

SEC.  10.  Vacancy  in  board,  hOW  filled.— The  board  of  di- 
rectors may  fill  up  all  vacancies  which  may  occur  in  it  during 
the  period  for  which  their  board  shall  have  been  elected,  and, 
in  the  absence  of  the  president  may  fill  his  place  by  electing  a 
president  pro  tempore. 

SEC.  11.  Contracts  and  agreements  binding  without  seal. 

—All  contracts  and  agreements  authenticated  by  the  president 
of  the  board  shall  be  binding  on  the  company  without  seal,  or 
such  other  mode  of  authentication  may  be  used  as  the  company, 
by  their  by-laws,  may  adopt. 

Deeds  to  real  estate,  however,  were  required  at  common  law  to  be 
under  seal,  and  neither  the  above  section,  nor  \  2478  of  the  Code  (M.  & 
V.),  change  this  law  as  to  such  conveyances.  In  all  such  cases  the  seal 
must  be  attached  to  make  it  legal.  10  Pick.  (Tenn. ),  460. 

For  discussion  of  what  contracts  can  be  made  by  company,  how  cor- 
porate name  to  be  signed,  acknowledgements,  etc.,  see  index. 

SEC.  12.  Liability  Of  directors.  —  The  board  of  directors 
shall  not  exceed,  in  their  contracts,  the  amount  of  the  capital 
of  the  corporation,  and  of  the  funds  which  the  company  may 
have  borrowed  and  placed  at  the  disposal  of  the  board;  and  in 
case  they  should  do  so,  the  president  and  directors  who  may  be 
present  at  the  meeting  at  which  such  contract  or  contracts  so 
exceeding  the  amount  aforesaid  shall  be  made,  shall  be  jointly 
and  severally  liable  for  the  excess,  both  to  the  contractor  or 
contractors  and  the  corporation;  .Provided,  That  anyone  may 
discharge  himself  from  such  liability  by  voting  against  such 
contract  or  contracts,  and  causing  such  vote  to  be  recorded  on 
the  minutes  of  the  board,  and  giving  notice  thereof  to  the  next 
general  meeting  of  the  stockholders. 

Liability  of  directors. — The  directors  are  individually  liable  for  such 
specific  debts  only  as  were  contracted  with  their  assent  in  excess  of  the 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  9 

paid-up  capital  and  remain  unpaid  after  the  corporate  asset*  are  ex- 
h;iiiM.-<i.  ,5  Tick.,  »iO:  see,  also,  0  Hax.,  278;  11  Pick.,  635. 

Directors  are  not  mere  figureheads;  they  must  use  good  faith,  care, 
attention,  and  circumspection,  or  they  will  be  liable. 

The  diversion  of  funds  to  other  objects  than  those  mentioned;  the 
payment  of  dividends  which  leave  insufficient  funds  to  meet  liabilities; 
the  keeping  of  false  books;  the  making  and  publishing  of  false  reports, 
are  misdemeanors;  and  also  subjects  those  actively  concerned  in  the  same 
to  damages.  M.  &  V.  Code,  §§1716-17. 

For  discussion  of  liability  of  directors,  see  index. 

SEC.  13.  Lateral  roads  within  twenty  miles  of  this  pro- 
hibited.— After  the  route  of  such  railroad  shall  have  been  accu- 
rately surveyed  and  adopted,  and  a  plat  thereof  dejx>sited  in 
the  office  of  the  secretary  of  state,  it  shall  not  be  lawful  for 
any  other  railroad  to  he  built,  cut,  or  constructed,  in  any  way 
or  manner,  or  by  any  authority  whatever,  running  laterally 
within  twenty  miles  of  the  route  so  adopted,  unless  by  said 
company,  or  with  the  consent  of  the  board  of  directors  thereof 
for  the  time  being. 

This  section  has  never  been  construed  by  the  supreme  court  of  Ten- 
nessee, but  the  supreme  courts  of  other  states,  as  well  as  the  United 
States,  have  decided  similar  sections  in  other  charters  valid.  They  hold 
that  such  a  grant,  when  accepted  by  the  corporation,  is  in  the  nature  of 
a  contract  which  cannot  be  impaired  without  compensation  to  the  rail- 
road company.  17  Conn.,  40;  42  Am.  Dec.,  716;  1  Wall.  (U.  S.),  116;  3 
Wall.  (U.  S.),  51;  73  Iowa,  513;  25  Wend.  (N.  Y.).  628;  47  Me..  189,  208; 
115  U.  S..  650,  683;  7  N.  H.,  35;  55  Conn.,  1;  120  U.  S.,  64;  14  Fed.  Rep., 
194;  22  Cal.,  398;  5  How.  (Miss.),  503;  11  La.  Ann.,  253:  13  How.,  71.  For 
discussion  of  this,  see  Charter,  subhead  "What  Franchises  Protected  as 
Contracts."  Refer  to  index.  9£  Ga.,  362;  86  Ga.,  83;  70  Ga.,  594. 

SEC.  u.  Exclusive  transportation,  rate  of  charges.— The 

said  company  shall  have  the  exclusive  right  of  transportation  or 
conveyance  of  persons,  goods,  merchandise,  and  produce  over 
the  said  railroad  by  them  to  be  constructed;  Provided,  That 
the  charge  of  transportation  or  conveyance  shall  not  exceed 
thirty-five  cents  per  one  hundred  pounds  on  heavy   Rmte  of 
articles,  and  ten  cents  per  cubic  foot  on  articles  of  char*«- 
measurement,  for  every  hundred  miles,  and  five  cents  a  mile 
for  every  passenger;  And  provided  at#<>,  That  the  said  com- 
pany may,  when  they  see  fit,  farm  out  their  rights  of  transpor- 
tation on  said  road,  subject  to  the  rates  above  mentioned. 

1.  Rate  of  charge. — This  section  simply  gives  the  right  to  charge  for 
freight  and  passengers.  The  intent  was  not  to  proportion  the  charges 
by  any  unit  of  distance,  but  to  fix  a  maximum  beyond  which  the  com- 
pany could  not  go.  and  to  leave  the  tariff  of  charges,  within  that  limit, 


10  ORIGINAL    CHARTER    OF    THE 

to  the  company,  subject  to  the  rule  of  the  common  law  that  charges 
should  be  reasonable,  and  to  the  regulating  power  of  the  courts  and  of 
the  legislature.  9  Lee,  609.  See,  also,  134  U.  S.,418.  70  Ga.,  694. 

2.  This  section  would  only  be  operative  to  and  from  points  wholly 
within  the  State  of  Tennessee.     Shipments  to  and  from  points  without 
the  state  would  be  controlled  by  the  interstate  commerce  law.     116  U. 
S.,  307  [29:  636]. 

3.  In  shipments  from   Nashville  to  Chattanooga,  the  mere  fact  that 
the  road  runs  into  Georgia  and  Alabama  would  not  take  it  out  of  this 
section,  for.  •'  in  the  carriage  of  freight  between  two  points  in  one  state, 
the  mere  passage  over  the  soil  of  another  does  not  render  that  business 
foreign  which  is  otherwise  domestic."     145  U.  S.,  p.  192  (672).     See  notes 
to  sees.  34  and  40.     See,  also,  108  U.  S.,  538  (27:  812-818). 

4.  Exclusive  transportation. — A  part  of  this  section  seems  at  first 
blush  to  convey  a  franchise  exempt  from  eminent  domain,  as  it  purports 
to  convey  the  exclusive  right  of  transportation  over  the  road.     Whether 
the  legislature  intended  to  do  so  or  not,  however,  is  immaterial,  as  the 
grant  of  such  a  right  would  be  unconstitutional.     The  state  cannot  bar- 
gain away  its  sovereign  power,  and  any  act  attempting  to  divest  it  of  the 
power  would  be  void,  even  though  incorporated  in  the  charter  of  the 
road.     Vol.  XIV.  Am.  &  Eng.  Corp.  Cas.,  pp.  417,  30;  18  Conn.,  451;  102 
Pa.  St.,  123;  48  Mich.,  433;  53   Ala.,  211;  65  Ga.,  160;  7  N.  H.,  35;  Lewis 
on  Em.  Dom.,  sec.  275.      See  50  Ga..  204;  70  Ga.,  694. 

SEC.  15.  Installments,  SUitS  for. — The  board  of  directors 
may  call  for  the  payment  of  twenty-four  and  a  half  dollars  on 
each  share  of  stock,  in  sums  not  exceeding  two  dollars,  in 
every  thirty  days;  Provided^  That  twenty  days'  notice  be  given 
of  such  call  in  at  least  one  public  newspaper  of  the  state  in 
which  any  of  the  stockholders  may  reside;  and  a  fail  tire  to  pay, 
or  secure  to  be  paid,  according  to  the  rules  of  the  company, 
any  of  the  installments  so  called  as  aforesaid,  shall  induce  a 
forfeiture  of  the  share  or  shares  on  which  default  shall  be  so 
made,  and  all  payments  thereon,  and  the  same  shall  vest  in  and 
belong  to  the  company,  and  may  be  restored  to  the  owner  or 
owners  by  the  board  of  directors,  if  they  deem  proper,  on  the 
payment  of  all  arrears  on  such  shares,  and  legal 
interest  thereon,  or  the  directors  may  waive  the  for- 
feiture after  thirty  days'  default,  and  sue  the  stockholders  for 
the  installment  due,  at  their  discretion. 

A  corporation  has  no  power  to  make  a  by-law  to  forfeit  or  sell  a  mem- 
ber's stock,  unless  there  be  a  provision  (as  in  this  instance)  in  the  charter 
or  articles  of  association,  authorizing  the  same.  19  Wend.,  37:  Rorer  on 
Railroads,  p.  163.  Such  a  law  would  not  now  be  valid,  as  all  subscrip- 
tions have  been  settled. 

SEC.  16.  StOCk,  hOW  transferred. — The  stock  of  said  com- 
pany may  be  transferred  in  such  manner  and  form  as  may  be 
directed  by  the  by-laws  of  the  said  corporation. 


NASHVILLE,    CHATTANOOGA    A    8T.    LOUIS    RAILWAY.  11 

The  by-laws,  orders,  and  resolutions  adopted  by  a  railroad  company, 
or  its  stockholders,  are  always  under  the  control  of  the  majority,  unless 
expressly  provided  otherwise  by  the  charter,  and  may  be  repealed,  al- 
tered, or  modified  from  time  to  time  by  the  majority.  5  Sneed,  506-8. 

For  discussion  of  "how  stock  to  be  transferred  and  liability  of  company 
for,  see  index, 

SEC.  17.  Capital  increased,  how. — The  said  company  may 
at  any  time  increase  its  capital  to  a  sum  sufficient  to  complete 
the  said  road  and  stock  it  with  everything  necessary  to  give  it 
full  operation  and  effect,  either  by  opening  books  for  new  stock, 
or  by  selling  such  new  stock,  or  by  borrowing  money  on  the 
credit  of  the  company,  and  on  the  mortgage  of  its  charter  and 
works;  and  the  manner  in  which  the  same  shall  l>e  done  in 
either  case  shall  be  prescribed  by  the  stockholders  at  a  general 
meeting;  and  any  state,  or  any  citizen,  corporation,  or  com- 
pany, of  this  or  any  other  state  or  country,  may  subscribe  for 
and  hold  stock  in  said  company,  with  all  the  rights  and  subject 
to  all  the  liabilities  of  any  other  stockholder. 

1.  Increase  of  capital. — The  clause  in  this  section  allowing1  the  com- 
pany to  "increase  its  capital  to  a  sum  sufficient  to  complete  its  road,  and 
to  stock  it  with  everything1  necessary  to  give  it  full  operation,''  etc.,  gives 
only  the  limited  power  to  the  company  to  issue  bonds  and  mortgage  its 
property  to  complete  and  equip  its  road,  and  for  no  other  purpose.  Fntzler 
v.  Railrotid  Company,  4  Pickle,  138. 

2.  By  the  Acts   of   1875,  ch.   142,  sec.   19,  all  corporations  previously 
chartered  by  the  acts  of  the  general  assembly  were  allowed  to  increase 
their  capital  stock  by  a  method  therein  set  out. 

3.  This  section  was  amended  May  13,  1872,  by  a  decree  of  the  chancery 
court  at  Nashville,  minute  book  V,  p.  174,  sec.  4,  so  that  "  two- thirds  of 
the  whole  number  of  directors  agreeing  thereto,  may  increase  the  capital 
stock  to.such  an  amount  as  may  be  determined  by  the  board  of  directors." 
See  decree  itself  in  this  compilation,  in  next  chapter.     But  also  see  dis- 
cussion herein  of  validity  of  chancery  court  amendments. 

4.  For  method  of  increasing  capital  stock  now,  see  index, 

5.  Increase  of  capital. — By  Acts  Tenn.,  1857-8,  ch.  161,  sec.  4.  this  com- 
pany was  allowed  to  increase  its  capital  to  a  sum  sufficient,  with  the 
state  aid,  to  construct  the  Jasper  branch. 

6.  The  capital  stock  of  this  company  was  increased  to  810,000.000  at 
the  annual  meeting-  of  stockholders  June  30,  1891. 

SEC.  is.  Directors'  annual  report,  may  call  general  meet- 
ings.— The  board  of  directors  shall,  once  in  every  year  at  least, 
make  a  full  report  on  the  state  of  the  company  and  its  affairs 
to  a  general  meeting  of  the  stockholders,  and  oftener  if  directed 
by  a  by-law;  and  shall  have  power  to  call  a  general  meeting  of 
the  stockholders  when  the  board  may  deem  it  expedient. 

See  notes  to  sec.  9  of  this  charter. 


12  ORIGINAL    CHARTER    OF    THE 

SEC.  19.  Qualification  of  officers  and  voters.—  No  person 

but  &  citizen  of  the  United  States,  being  a  lona  fide  stockholder 
in  his  own  right  of  at  least  forty  shares,  which  he  shall  have 
held  at  least  three  months  previous  to  his  election  (except  at 
the  first  election),  shall  be  president  or  a  director  of  the  com- 
pany; nor  shall  any  stockholder  vote,  in  person  or  by  proxy, 
at  any  general  or  other  election  (except  the  first),  who  shall  not 
have  held,  in  his  own  right,  the  shares  on  which  he  offers  to 
vote  at  least  three  months  previous  to  such  election. 

1.  By  Acts  1849-50.  ch.  266,  this  section  was  amended  so  as  to  allow 
the  city  of  Charleston,  S.  C.,  to  appoint  two  directors  in  road  to  repre- 
sent her  stock,  and  the  Georgia  Railroad  &  Banking  Co.  to  appoint  one, 
but  that  eight  directors  should  still  constitute  a  quorum.     See  act  itself 
in  next  chapter. 

2.  The  city  of  Charleston  subscribed  for  $500,000  of  the  stock  in  this 
company,  as  per  city  ordinance  passed  April  11,  1848. 

3.  The  Georgia  Railroad  &  Banking  Co.  subscribed  for  $250,000,  as  per 
resolution  of  directors  passed  April  11,  1848. 

For  discussion  of  qualification  of  president  and  directors  and  right 
of  stockholders  to  vote  for.  see  index. 

SEC.  20.  Method  and  scale  of  voting  for  directors.—  Stock- 

holders may  vote  in  person  or  by  proxy  and  in  the  election  of 
directors,  and,  in  voting  on  all  questions  which  come  before  a 
meeting  of  the  stockholders,  or  which  may  be  submitted  to  the 
decision  of  the  stockholders  in  any  other  manner,  the  vote  shall 
scale  of  ke  taken  according  to  the  followin  scale:  The  owner 


voting.  Of  one  or  t-wo  snares  8ball  be  entitled  to  one  vote; 
the  owner  of  not  less  than  three  nor  more  than  four'  shares 
shall  be  entitled  to  two  votes;  the  owner  of  not  less  than  five 
nor  more  than  six  shares  shall  be  entitled  to  three  votes;  the 
owner  of  not  less  than  seven  nor  more  than  eight  shares,  to 
four  votes;  the  owner  of  not  less  than  nine  nor  more  than 
eleven  shares,  to  five  votes;  the  owner  of  not  less  than  twelve 
nor  more  than  fifteen  shares,  to  six  votes;  the  owner  of  not 
less  than  sixteen  nor  more  than  twenty  shares,  to  seven  votes; 
the  owner  of  not  less  than  twenty-one  nor  more  than  twenty- 
six  shares,  to  eight  votes;  the  owner  of  not  less  than  twenty- 
seven  shares  nor  more  than  thirty-three,  to  nine  votes;  the 
owner  of  not  less  than  thirty-four  nor  more  than  forty  shares, 
to  ten  votes;  and  the  owner  of  every  ten  shares  above  forty 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.  13 

shall  be  entitled  therefor  to  one  vote;  Provided,  That  no  indi- 
vidual, corporation,  or  company  shall  be  entitled  to  more  than 
five  hundred  votes. 

1.  Amendment  as  to  scale  of  voting. — By  Private  Acts  1868-9.  ch.  2, 
sec.  4,  the  charters  of  all  railroads  were  allowed  to  be  amended  so  that 
every  stockholder  should  be  entitled  to  one  vote  for  each  share  of  stock, 
provided  it  did  not  interfere  with  the  vested  right  of  the  company.    This 
amendment  was  accepted  by  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  September  20,  1875,  and  now  in  all  elections  each  share  is  en- 
titled to  one  vote.     See  discussion  herein;  refer  to  index. 

2.  Amendment    [chancery  court]. — This  section   was  amended   by 
decree  of  the  chancery  court,  at  Nashville,  May  13,  1872,  as  per  minute 
book  "V,"  p.  174  el  fteq.,  so  that  "the  owner  of  one  or  more  shares,  up 
to  and  including  four,  should  be  entitled  to  one  vote  for  each  share:  the 
owner  of  a  greater  number  of  shares  than  four  should  be  entitled  to  one 
vote  for  each  four  shares  over  and  above  four."    This  amendment  was 
doubtless  void,  however.     8  Bax.,  332;  1  Tenn.  Chy.,  95,  98;  11  Lea,  3;  9 
Lea,  380;  1  Lea,  462.     Subsequently,  on  September  20,  1875,  the  company 
accepted  the  Acts  of  1868-9,  ch.  2,  as  above  set  out,  which  now  gives  one 
vote  for  each  share. 

SEC.  21.  Real  property  may  be  purchased  for  what— The 

said  company  may  purchase,  have,  and  hold  in  fee,  or  for  a 
term  of  years,  any  lands,  tenements,  hereditaments  which 
may  be  necessary  for  said  road,  or  appurtenances  thereof,  or 
for  the  erection  of  depositories,  storehouses,  houses  for  the 
officers,  servants,  or  agents  of  the  company,  or  for  workshops 
or  foundries  to  be  used  for  the  said  company,  or  for  procuring 
timber,  stones,  or  other  materials  necessary  for  the  construc- 
tion of  the  road  or  its  appurtenances,  or  for  effecting  transpor- 
tation thereon. 

1.  See  notes  to  sec.  24  of  this  charter. 

2.  For  the  purposes  enumerated  in  the  above  section,  the  railway  can- 
not condemn,  but  must  rely  upon  its  purctmslng  power  therein  conferred. 
11  Hum..  347. 

For  general  discussion  of  this  under  Eminent   Domain,  herein,  see 
index. 

SEC.  22.  Crossing  and  taking  roads,  water  courses,  and 

turnpikes. — The  said  company  shall  have  the  right,  when  nec- 
essary, to  construct  the  road,  or  any  branch  thereof,  across  or 
along  any  public  road  or  water  course;  Provided,  Public  roads 

and  water 

That  the  said  road  and  the  navigation  of  such  water  courses, 
course  shall  not  be  thereby  obstructed;  And  provided  further, 

That  such  railroad  shall  not  be  located  so  near  any  Turnpikes 
.  .1  .    .  .     i.       ,i      .    .  not  to  b« 

turnpike  road  as  to  injure  or  prejudice  the  interests  injured. 

of  the  stockholders  in  such  turnpike  road,  except  upon  such 


14  ORIGINAL    CHARTER    OF    THE 

terms  as  may  be  agreed  upon  by  the  president  and  directors  of 
the  same  on  behalf  of  the  stockholders. 

1.  Bridge  across  Tennessee  river. — By  Acts  Term.,  1849-50,  ch.  266, 
sec.  2.  the  company  was  required  to  build  the  bridge  across  the  Tennes- 
see river,  at  least  thirty  feet  above  extreme  high-water  mark  between 
the  two  piers  next  to  the  western  bank  or  any  two  piers  the  company 
may  deem  best,  and  the  distance  between  the  two  so  selected  shall  be  at 
least  one  hundred  and  fifty  feet.     Subsequently,  by  Acts  Tenn.,  1855-6, 
p.  487,  as  the  bridge  had  burned,  the  legislature  passed  an  act  relieving 
the  company  from  building   the  bridge  thirty  feet  above   high-water 
mark,  or  any  other  specified  height,  provided  a  good  draw  or  revolving 
bridge  be  constructed,  at  least  sixty  feet  between  the  piers.     See  act 
itself  in  this  compilation,  in  next  chapter. 

Alabama  acts  as  to  bridge. — The  state  of  Alabama  passed,  by  Acts 
1849-50,  No.  123.  sec.  2,  an  identical  act  to  the  Acts  of  1849-50,  ch.  266, 
sec.  2,  of  Tennessee,  above  set  out,  and  subsequently,  by  Acts  1855-6,  p. 
11,  passed  an  identical  act  to  the  Acts  of  1855-6,  p.  487,  of  Tennessee, 
above  set  out. 

By  Acts  of  1888-9,  p.  443,  Alabama  again  required  the  bridge  to  be 
built  thirty  feet  above  high  water,  etc.,  this  act  being  the  same  as  Acts 
of  1849-50,  No.  123,  above  set  out.  This  act,  however,  is  void  as  against 
the  vested  rights  of  the  railway.  The  bridge  had  been  erected  and  the 
draw  put  in  under  the  Acts  of  1855-6,  before  the  act  of  1888-9  was 
passed.  In  addition  it  would  be  void,  as  congress  now  has  charge  of  the 
matter. 

Congress  acts. — By  acts  of  congress  1888,  as  amended  by  those  of  1890, 
the  character  of  bridges,  etc.,  over  all  navigable  streams  has  been  taken 
from  the  state  legislatures.  Prior  to  this  time,  congress  had  no  jurisdic- 
tion over  the  navigable  waters  within  the  territorial  limits  of  a  state, 
as  there  was  no  common  law  of  the  United  States  independent  of  statute. 
Until  congress  acted,  therefore,  the  matter  rested  entirely  with  the  leg- 
islatures of  the  states.  Hence  these  acts.  Since  congress  has  taken 
charge,  however,  these  acts  of  the  state  legislature  are  of  no  particular 
value.  The  bridge  must  be  constructed  according  to  the  acts  of  congress. 
As  it  is  now  constructed  lawfully  under  the  said  acts  of  congress,  the 
last  acts  of  Alabama  are  void  upon  the  subject. 

2.  Road  crossings. — Where  railroad  crosses  public  road  already  in 
use,  it  must,  unless  relieved  by  statute,  not  only  restore  the  public  road, 
but  erect  and  maintain  perpetually  all  structures  and  keep  up  all  re- 
pairs made  necessary  by  such  crossing,  for  the  safety  and  convenience 
of  the  public.     3  Pickle.  712.     But  this  law  does  not  apply  where  road 
crosses  railroad.     See  discussion  herein.     See,  also.  14   Lea,  525,   which 
holds  this  section  valid  in  action  by  turnpike  company  to  enforce  con- 
tract. 

3.  Obstructing. — The  temporary  and  necessary  obstruction  of  naviga- 
tion in  the  construction  or  repair  of  a  bridge  is  not  unlawful  under  this 
section,  nor  within  the  prohibition  of  \  1527  of  the  code  (M.  &  V.).     6 
Pickle.  638.     Hut  see  5  Sneed,  427;  1  Bax.,  55. 

4.  The  term    •' public  road,"  in  this  charter,  does  not  embrace  the 
streets  and  alleys  of  a  city.     3  Head,  596. 

5.  Railroads  may  be  indicted  and  fined  for  obstructing  a  public  high- 
way contrary  to  powers  in  their  charter.     3  Head,  523. 

6.  See  discussion  herein  of  right  to  cross  bridge  and  obstruct  roads, 
navigable  streams,  etc.,  and  right  of  highways  and  railways  to  cross 
right  of  way  of  this  company.     Refer  to  index. 

SEC.  23.  Purchase  of  bridges,  roads,  etc.— The  said  com- 


NASHVILLE,    CHATTANOOGA    A   ST.    LOUIS   RAILWAY.  15 

pany  may  purchase,  have,  and  hold  any  bridge  or  turnpike  road 
over  which  it  may  be  necessary  to  carry  the  said  railroad;  and 
when  such  purchase  is  made,  to  hold  the  said  bridge  or  turn- 
pike road  on  the  same  terms  and  with  all  the  rights  which  be- 
long to  the  individual,  individuals,  or  corporation  from  which 
such  purchase  may  be  made;  Provided,  That  the  said  company 
shall  not  obstruct  any  public  road  without  constructing  another 
as  convenient  as  may  be. 

1.  The  term  "as  convenient  as  may  be  "  in  the  above  section  does  not 
mean  that  the  new  road  must  be  as  convenient  and  easy  of  passage  and 
as  safe  as  the  old  road,  but  that  the  new  road  should  be  so  constructed 
as  to  answer  the  purposes  of  the  traveling  public,  and  be  made  as  easy 
and  convenient  as  the  nature  of  the  ground  will  permit,  having  regard 
to  the  rights  of  the  public  and  not  requiring  unreasonable  outlays  of 
money  by  company.  1  Bax.,  55. 

2.  A  chartered  toll  bridge,  having  exclusive  right,  may  be  condemned 
for  railroad  purposes.     1  Sneed,  176. 

SEC.  24.  Condemnation  for  right  Of  way.— Where  any  lands 
or  right  of  way  may  be  required  by  the  said  company  for  the 
purpose  of  constructing  their  road,  and  for  want  of  |£nmt£kseijfor 
agreement  as  to  the  value  thereof,  or  from  any  other  certaiined.as 
cause  the  same  cannot  be  purchased  from  the  owner  or  owners, 
the  same  may  be  taken  at  a  valuation  to  be  made  by  five  com- 
missioners, or  a  majority  of  them,  to  be  appointed  by  the  cir- 
cuit court  of  the  county  where  some  part  of  the  land  or  right 
of  way  is  situated;  and  the  said  commissioners,    before  they 
act,  shall  severally  take  an  oath,  before  some  justice  By  sworn 
of  the  peace,  faithfully  and  impartially  to  discharge  «rs. 
the  duty  assigned  them.     In  making  the  said  valuation,   the 
commissioners  shall  take  into  consideration  the  loss  or  damage 
which  may  occur  to  the  owner  or  owners  in  conse-  commission 
quence  of  the  land  l>eing  taken  or  the  right  of  way  skier  what, 
surrendered,  and  also  the  benefit  and  advantage  he,  she,  or  they 
may  receive  from  the  erection  or  establishment  of  the  railroad 
or  works,  and  shall  state  particularly  the  nature  and  amount  of 
each,  and  the  excess  of  loss  and  damage  over  and  above  the 
benefit  and  advantage  shall  form  the  measure  of  valuation  of 
the  said  land  or  right  of  way.     The  proceedings  of  the  said 
commissioners,  accompanied  with  a  full  description  of  the  said 
land  or  right  of  way,  shall  l>e  returned  under  the  hands  and 


16  ORIGINAL  CHARTER    OF    THE 

seals  of  a  majority  of  the  commissioners,  to  the  court  from 
which  the  commission  issued,  there  to  remain  of  record.  In 
case  either  party  to  the  proceedings  shall  appeal  from 
the  valuation  to  the  next  session  of  the  court  grant- 
ing the  commission,  and  give  reasonable  notice  to  the  opposite 
part}'  of  such  appeal,  the  court  shall  order  a  new  valuation  to 
be  made  by  a  jury,  who  shall  be  charged  therewith  in  the  same 
term,  or  as  soon  as  practicable,  and  their  verdict  shall  be  final 
and  conclusive  between  the  parties,  unless  a  new  trial  shall  be 
granted;  and  the  lands  or  right  of  way  so  valued  by  the  com- 
missioners or  jury  shall  vest  in  the  said  company  in  fee  simple  so 
soon  as  the  valuation  may  be  paid,  or,  when  refused,  may  be 
tendered.  Where  there  may  be  an  appeal,  as  aforesaid,  from 
On  what  con-  the  valuation  of  commissioners  by  either  of  the 

work  to  pro-  parties,  the  same  shall  not  prevent  the  works  intended 

ceed  pending 

litigation.       to  be  constructed  from  proceeding;  but  where  the 

appeal  is  by  the  company  requiring  the  surrender,  they  shall 
be  at  liberty  to  proceed  in  their  works  only  on  condition  of 
giving  to  the  opposite  party  a  bond,  with  good  security,  to  be 
approved  by  the  clerk  of  the  court  where  the  valuation  is 
returned,  in  a  penalty  equal  to  double  the  said  valuation,  condi- 
tioned for  the  payment  of  said  valuation  and  interest  in  case 
the  same  be  sustained;  and,  in  case  it  be  reversed,  for  the  pay- 
ment of  the  valuation  thereafter  to  be  made  by  the  jury  and 
confirmed  by  the  court;  Provided,  That  when  the  land  cannot 
be  had  by  gift  or  purchase  the  operations  of  the  work  are  not 

Work  not  to  to  be  hindered  or  delayed  during  the  pendency  of 
be  delayed  by 

legal  process,  any  proceedings  to  assess  its  value,  as  aforesaid,  nor 
shall  any  injunction  or  supersedeas  be  awarded  by  any  judge  or 
court  to  delay  the  progress  of  said  work. 

1.  Character  of  title  acquired. — It  will  be  noticed,  from  the  above 
section,  that,  as  soon  as  the  commissioners  appointed  to  assess  the  value 
made  their  return,  and  the  railway  paid  or  tendered  the  amount  assessed, 
the  title  to  the  land  or  right  of  way  immediately  vested  in  the  company 
in  fee  simple.  The  supreme  court  of  Tennessee,  in  construing1  this  sec- 
tion, held:  ''That  the  railway  company,  having  constructed  its  road  and 
paid  the  damages  aforesaid,  acquired  an  absolute  estate  in  fee  simple  to 
said  land,  and  is  entitled  to  the  exclusive  possession  and  control  of  every 
pan  thereof.  The  original  owner,  therefore,  has  no  right  to  the  occupa- 
tion or  use  of  any  part  thereof  within  the  limits  so  condemned  and  paid 
for."  4  Sneed,  528  [280]. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  17 

The  title  and  right  to  the  use  of  the  land  and  right  of  way,  acquired 
under  section  25  below,  however,  is  materiallj'  different.  In  that  ease, 
the  land  is  not  jut  hi  for,  and,  though  the  company  is  given  one  hundred 
iVct  uu  each  side  of  the  center  of  the  road,  in  the  absence  of  any  con- 
tract to  the  contrary,  where  the  owner  failed  to  apply  in  time  for  assess- 
ment, yet.  the  title  secured  is  only  an  ametnent  and  not  a  fee  *linple,  and 
the  landowner  is  entitled  to  the  use  of  it  until  necessary  for  railroad 
purposes,  though  he  must  then  give  it  up.  5  Pick.,  293. 

2.  For  what  land  may  be  taken. — Land  may  be  taken,  under  this 
section,  for  right  of  way.  for  approaches  to  the  road  for  persons  and  ve- 
hicles, for  places  for  receiving  and  delivering,  loading  and  unloading, 
goods,  merchandise,  etc.,  but  not  for  laud  for  the  purposes  of  deposito- 
ric.-..  ^tort-houses,  workshops,  and  houses  for  agents,  etc.  In  the  latter 
ca-i-s  the  company  must  rely  solely  upon  its  purctuwhiy  power,  which, 
under  section*21  of  this  charter,  it  has  the  right  to  do.  1 1  Hum.,  347. 

3.  Same,  may  make  successive  appropriations. — The  mere  fact  that 
the  company  condemned  originally,  under  this  section,  fifty  or  one  hun- 
dred feet  for  a  right  of  way,  will  not  prevent  it  now  from  condemning 
a.s  much  more  ax  man  l>c  necennar]i  from  time  to  time.     This  is  so,  even 
though  the  railway  in  some  cases  may  have  agreed  and  contracted  not 
to  do  so,  and  the  right  of  way  was  given  to  it  under  that  condition.     The 
board  of  directors  have  no  power  to  bargain  away  the  power  of  eminent 
•  loni'iin.     87  Ky..  72:  45  Mo.,  212;  Rorer  on  Railroads,  p.  372,  275;  16  Ohio 
St.,  390;  54  Penn.  St.,  103;  10  Vroom,  45;  67  Barb.,  426;  52  Ind.,  16;  Ran- 
dolph on  Em.  Dorn.,  p.  107.  \  116;  36  Conn.,  196;  87  Ala..  501;  85  Ala.,  106; 
101  Ind  ,  366;  1  Md.,  553;  Lewis  on  Em.  Dom.,  \\  247,  259;  52  Ind.,  16.  42; 
101  Ind..  366;  113  111.,  156;  26   Kan.,  669;  13  Neb..  361;  54  Pa.  St.,  103;  57 
Ark.,  359;  58  Pa.  St.,  249;  Elliott  on  Railroads,  W,  930,  962;  104  111.,  323; 
8   Nev..  100;  58   Md.,  539;  17   111..  123;  9   Ky.  L.  R..  924;  44   Hun  (N.  Y.), 
!'.»»:  r>  Col..  270;  6  Col.,  2;  71  111.,  592;  18  Pick.  (Mass.).  472;  5  Ore.,  117. 

4.  How  condemnation  made  now. — The   power  of  eminent  domain 
conferred  in  the  above  section  is  an  inviolable  right  that  cannot  be  with- 
drawn by  the  legislature,  nor  surrounded  with  such  conditions  as  will 
destroy  its  value.     14   Wend.  (N.  Y.),  51;  8.  c.,  18  Wend.  (N.   Y.),  9;  31 
Am.  Dec..  313.     Hut  where  a  statute  prescribes  a  mode  by  which  lands 
may  be  condemned  in  the  charter,  and  thereafter  the  legislature,  by 
general  law,  prescribes  a  different  mode,  the  company  must  proceed  in 
the  mode  prescribed  by  the  latter  act.     Such  a  statute  does  not  impair 
vested  rtyhtx,  but  merely  affects  remedies.     Thompson  on  Corp.,  sees.  5407, 
5437;  16  Am.  Rep.,  729;  47  N.  J.  L.,  59;  54  Am.  Rep.,  114:  81   Ky.,  221;  3 
S.  C.,   381;  12  Heis.   (Tenn.),  54.     Subsequent  legislation  has  provided 
general  laws  for  condemnation  of  land,  and  these  should  doubtless  be 
followed.     See  Eminent  Domain  herein.     Refer  to  index.  2  Swan.  422. 

5.  For  a  full  discussion  of  this  section,  together  with   the  right  of 
successive  appropriations,  occupation,  and  use  of  right  of  way,  building 
on  and  tunneling  same.  etc..  see  Eminent  Domain,  Rlyht  of  H'»rj/.  herein. 
Refer  to  Index. 

SEC.  25.  in  absence  of  contract,  right  of  way  one  hun- 
dred feet,  when. — In  the  absence  of  any  contract  with  the  said 
company  in  relation  to  land  through  which  the  said  road  may 
pass,  signed  by  the  owner  thereof,  or  by  his  agent,  in  absence  of 
or  any  claimant  or  person  in  possession  thereof,  which  ers'offandVo 
may  l>e  confirmed  by  the  owner,  it  shall  be  presumed  assessment  in 
that  the  land  upon  which  the  said  road  may  be  con-  barred. 


18  ORIGINAL    CHARTER    OF    THE 

structed,  together  with  a  space  of  one  hundred  feet  on  each 
RI  ht  of  wa  s^e  °^  tne  cen^er  °f  said  road,  has  been  granted  to 
width  of.  ^ne  company  by  the  owner  thereof,  and  the  company 
shall  have  good  right  and  title  thereto,  and  shall  have,  hold, 
and  enjoy  the  same  as  long  as  the  same  be  used  only  for  the 
purposes  of  the  road,  and  no  longer,  unless  the  person  or  per- 
sons owning  the  said  land  at  the  time  that  part  of  the  road 
which  may  be  on  said  land  was  finished,  or  those  claiming  under 
him,  her,  or  them,  shall  apply  for  an  assessment  for  the  value 
of  said  lands,  as  hereinbefore  directed,  within  five  years  next 
after  that  part  of  said  road  was  finished,  and  in  case  the  said 
owner  or  owners,  or  those  claiming  under  him,  her,  or  them, 
shall  not  apply  for  such  assessment  within  five  years  next  after 
the  said  part  was  finished,  he,  she,  or  they  shall  be  forever 
barred  from  recovering  the  said  land,  or  having  any  assessment 
Minor  or  feme  or  compensation  therefor;  Provided,  Nothing  herein 

in  two  years  contained  shall  effect  the  right  of  feme  covert  or  in- 
after  removal 

of  disability,  fants  until  two  years  after  the  removal  of  their  re- 
spective disabilities. 

1.  Width,  of  right  of  way  one  hundred  feet,  when. — Under  this  sec- 
tion of  the  charter,  if  the  right  of  way  was  not  paid  for  by  railroad,  nor 
contract  entered  into  with  the  landowner,  the  railroad  has  right  to  an 
easement  of  one  hundred  feet  on  each  side  of  the  center  of  said  road, 
when  necessary  for  railroad  purposes,  unless  the  landowner  applied  in 
time  for  assessment  of  value.     Only  the  number  of  feet  up  to  a  hundred, 
actually  necessary,  to  be  taken  from  time  to  time.     5  Pickle,  293. 

For  rights  where  land  paid  for,  see  4  Sneed,  528. 

2.  The  owner's  possession  and  cultivation  of  any  part  of  this  one  hun- 
dred feet  is  not  adverse  to  railroad,  and.  although  continued  for  thirty 
years,  will  not  defeat  the  easement,  and  railroad  company  can  take  it 
when  necessary  for  side  tracks,  etc.     5  Pickle,  293.     See  general  discus- 
sion of  subject  herein,  under  Eminent  Domain.     See  index. 

SEC.  26.  Forfeiture  and  penalty  for  intrusion.— If  any  per- 
son shall  intrude  upon  the  said  railroad,  or  any  part  thereof, 
Forfeiture  for  ^  an v  manner  °f  use  thereof,  or  of  the  rights  and 
intrusion.  privileges  connected  therewith,  without  the  permis- 
sion, or  contrary  to  the  will  of  said  company,  he,  she,  or  they 
shall  forthwith  forfeit  to  the  said  company  all  the  vehicles 
that  may  be  so  intruded  on  said  road,  and  the  same  may  be 
Penalty  for  recovered  by  suit  at  law,  and  the  person  or  persons 
so  intruding  may  also  be  indicted  for  misdemeanor, 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  19 

and,  upon  conviction,  fined  and  imprisoned  by  any  court  of 
competent  jurisdiction. 

As  to  the  misdemeanor,  see  3  Hum.,  pp.  481-483. 

SEC.  27.  Obstructing  or  damaging  road  or  bridges,  pun- 
ishment.— If  any  person  shall  willfully  and  maliciously  destroy, 
or  in  any  manner  hurt,  damage,  or  obstruct  the  said  railroad, 
or  any  bridge,  or  any  vehicle  used  for  or  in  the  transportation 
thereon,  such  person  or  persons  so  offending  shall  be  liable  to  be 
indicted  therefor,  and,  on  conviction,  shall  be  imprisoned  not 
more  than  six  nor  less  than  one  month,  and  pay  a 
fine  not  less  than  twenty  dollars;  and  shall  be  fur- 
ther liable  to  pay  all  the  expenses  of  repairing  the  same;  and 
it  shall  not  be  competent  for  any  j>erson  so  offending  against 
the  provisions  of  this  clause  to  defend  himself  by  pleading  or 
•riving  in  evidence  that  he  was  the  owner,  or  agent  or  servant 
of  the  owner,  of  the  land  where  such  destruction,  hurt,  dam- 
age, injury,  or  obstruction  was  done  or  caused,  at  the  time  the^ 
same  was  caused  or  done. 

Subsequent  legislation  has  rendered  this  section  of  the  charter  unnec- 
essary, if  not  inoperative.  By  §5387  of  the  Tenn.  Code  (M.  &  V.),  it  is 
provided  that  ''  whoever  willfully  and  maliciously  puts  upon  the  track 
of  any  railroad  in  this  state  any  kind  of  obstruction,  or  loosens  or  re- 
moves any  of  the  rails  or  timbers,  or  loosens,  destroys,  or  injures  any  of 
the  machinery,  gear,  or  apparatus  of  the  locomotive  or  cars,  or  removes 
or  changes  any  signal,  so  as  to  endanger  the  safe  running  of  the  locomo- 
tive and  cars,  or  either  or  any  of  them,  is  guilty  of  a  felony,  and,  upon 
conviction  of  either  offense,  shall  be  imprisoned  in  the  penitentiary  not 
less  than  two  nor  more  than  fifteen  years."  And  by  #  5388  it  is  provided 
that  if  death  ensues  from  any  of  the  above  acts,  the  offender  shall  suffer 
death  by  hanging;  and  by  the  following  section,  "that  if  anyone  is  in- 
jured, the  offender,  if  convicted,  shall  be  imprisoned  in  the  penitentiary 
from  three  to  fifteen  years."  Similar  laws  are  in  force  in  Alabama, 
Georgia,  and  Kentucky. 

SEC.  28.  Obstruction  a  public  nuisance.— Every  obstruction 
to  the  safe  and  free  passage  of  vehicles  on  the  said  road  shall 
be  deemed  a  public  nuisance,  and  may  l>e  abated  as  such  by  an 
officer,  agent,  or  servant  of  the  company,  and  the  ]>crson  caus- 
ing such  obstruction  may  be  indicted  and  punished  for  erecting 
a  public  nuisance. 

The  word  "obstruction,"  as  used  by  railroad  men,  is  not  such  a  term 
of  art  as  requires  explanation  by  an  expert.  i\  Heis. ,  347.  See,  also,  3 
Head,  522;  1  Bax.,  55. 


20  ORIGINAL    CHARTER    OF    THE 

SEC.  29.  Storage  Charges  allowed,  When.— The  said  com- 
pany shall  have  the  right  to  take  at  the  storehouses  they  may 
establish  or  annex  to  their  railroad  all  goods,  wares,  merchan- 
dise, and  produce  intended  for  transportation;  prescribe  the 
rules  of  priority,  and  charge  and  receive  such  just  and  reason- 
able compensation  for  storage  as  they,  by  rules,  may  establish 
(which  they  shall  cause  to  be  published),  or  as  may  be  fixed  by 
agreement  with  the  owner,  which  may  be  distinct  from  the 
Wot  to  charge  rates  of  transportation;  Provided,  That  the  said  com - 
diaf"  trans-  pany  shall  not  charge  or  receive  storage  on  goods, 
possible.  wares,  merchandise,  or  produce  which  may  be  de- 
livered to  them  at  their  regular  depositories  for  immediate 
transportation,  and  which  the  company  may  have  the  power 
of  transporting  immediately. 

Where  goods  are  received  and  deposited  in  depot  or  warehouse,  the 
liability  of  carrier,  as  such,  ceases  eo  instnnti.  Thereafter  its  liability 
is  that  of  a  warehouseman.  7  Pickle,  699.  Not  extended  by  Acts  1870, 
ch.  17.  8  Lea,  32. 

The  duty  of  a  warehouseman  is  to  exercise  ordinary  care  and  diligence 
only.  5  Pickle,  2,  33,  35. 

The  delivery  of  goods  and  payment  of  freight  are  concurrent  acts,  to 
be  performed  at  the  same  time,  if  road  desires.  9  Heis.,  564. 

Railroad  may  demand  freight  charges  before  receiving  and  transport- 
ing goods. 

Railroad  has  no  lien  on  goods  for  demurrage,  in  absence  of  contract 
or  clause  in  bill  of  lading.  15  Lea,  261.  Such  a  clause  should  be  in- 
serted in  bill  of  lading. 

By  \  2789  (M.  &  V.  Code),  freight  uncalled  for  after  six  months  and  one 
day  may  be  sent  to  one  of  the  nearest  principal  offices  and  sold  for 
charges. 

In  absence  of  controlling  necessity  to  sell,  railroad  can  only  enforce 
lien  by  due  process  of  law.  9  Heis.,  564. 

SEC.  30.  Dividends  paid,  When. — The  profits  of  the  com- 
pany, or  so  much  thereof  as  the  board  of  directors  may  deem 
advisable,  shall,  when  the  affairs  of  the  company  will  permit, 
be  semiannually  divided  among  the  stockholders  in  proportion 
to  the  stock  each  may  hold. 

liy  Acts  1847-8,  ch.  70.  sec.  3,  this  section  of  the  charter  was  amended 
so  that  the  company  should  be  required  to  estimate  and  pay  semiannu- 
ally to  the  several  holders  thereof  a  sum  equal  to  six  per  cent,  per 
annum  on  the  capital  stock  actually  paid  in,  to  be  charged  to  the  cost  of 
construction,  provided  a  majority  of  the  stockholders,  at  their  first 
regular  meeting,  agreed  thereto.  See  act  itself  in  this  compilatiop,  in 
next  chapter. 

See  general  discussion  of  dividends  herein.     Refer  to  index. 


NASHVILLE,     CHATTANOOGA    A    8T.     LOUI8    RAILWAY.  21 

SEC.  31.  Banking  prohibited,  may  insure.— The  said  com- 
pany is  hereby  expressly  prohibited  from  carrying  on  any 
banking  operations,  but  may  effect  insurance  on  lives  and 
proj>erty  transported  on  the  road. 

Railroad  has  right  under  this  section  to  insure. 

It  may  also  have  insurance  companies  to  insure  for  it  not  only  its  in- 
terest and  liability,  but  the  whole  value  of  goods  intrusted  to  it  for  car- 
riage. In  such  cases  it  may  collect  the  whole  value,  reimburse  itself  for 
its  special  loss,  and  hold  the  surplus  in  trust  for  the  owners.  5  Pick.,  2, 
45.  See,  also,  93  U.  S.,  541;  133  U.  S.,  409. 

As  an  insurer  the  liability  of  the  railroad  is  secondary.  13  Wall. 
(U.  S.),  367. 

SEC.   32.  Crossings  Of  roads  and  lands.— Whenever,  in  the 

construction  of  said  road,  it  shall  be  necessary  to  cross  or  in- 
tersect any  established  road  or  way,  it  shall  be  the  duty  of  the 
company  to  construct  said  road  across  such  established  road  or 
way  so  as  not  to  impede  the  passage  or  transportation  of  per- 
sons or  proj)erty  along  the  same;  or  where  it  shall  be  necessary 
to  pass  through  the  land  of  any  individual,  it  shall  be  their 
duty  to  provide  for  such  individual  a  proper  wagon  way  or 
ways  across  said  road  from  one  part  of  his  land  to  the  other. 

See  note  to  section  22  and  23  of  this  charter;  3  Pickle,  712;  1  Bax.,  55. 
The  term  "public  road  "  does  not  embrace  the  streets  and  alleys  of  a 
city.     3  Head,  596. 

See  general  discussion  herein  under  CrosKlngs.       17  Pick..  197 

SEC.  33.  Additional  powers. — The  said  company  shall  pos- 
sess such  additional  powers  as  may  be  convenient  for  the  due 
and  successful  execution  of  the  powers  granted  in  this  charter, 
and  for  the  successful  construction  and  management  of  the  work. 

Under  this  section  company  has  no  authority  to  guarantee  a  specified 
dividend  on  its  stock  as  an  inducement  to  subscribers  to  take  it.  1  Pickle, 
703. 

See  Acts  1870,  ch.  14,  included  in  this  compilation,  in  next  chapter, 
which  purports  to  construe  the  powers  granted  under  this  section,  and 
empower  the  company  to  borrow  a  sum  not  exceeding  three  million  dol- 
lars. It  is  not,  however,  in  the  province  of  the  legislature  to  expound 
the  meaning  of  existing  laws.  They  can  say  what  the  law  shall  be,  but 
not  what  it  is.  2  Hum.,  304;  see  1  Bax.,  319. 

SEC.  34.  Charter,  how  amended. — This  charter  shall  be 
amendable  from  time  to  time  by  the  legislature,  whenever  the 
president  and  directors  shall  unanimously  petition  for  amend- 
ments, specifying  in  the  petition  the  nature  of  such  amend- 
ments; and,  when  such  amendments  shall  U-  adopted  by  the 


22  ORIGINAL    CHARTER    OF    THE 

legislature  and  submitted  to  the  directory,  and  be  accepted  and 
adopted  unanimously  by  the  president  and  directors,  they  shall 
be  obligatory  on  the  stockholders,  and  not  otherwise. 

1.  Petition  for  amendment  not  necessary. — An  amendment  accepted 
and  adopted  by  the  president  and  directors  unanimously  will  be  valid, 
although  not  recommended  by  the  unanimous  petition  of  the  president 
and  directors,  that  being  merely  directory.     8  Bax.,  108. 

2.  Charter  irrevocable. — As  the  legislature  did  not  reserve  in  this 
charter  the  power  to  modify,  amend,  or  repeal  the  same,  or  any  part 
thereof,  all  the  rights  granted  herein  are  irrevocable.     The  legislature 
cannot  thrust  an  amendment  upon  it  or  enforce  the  abrogation  of  any 
right  conferred. 

The  act  of  incorporation,  being  legal  in  itself,  is  a  contract  between 
the  state  and  the  corporation,  investing  it  with  a  legal  estate  in  the 
franchises  named  in  the  charter,  and,  being  such  a  contract,  it  is  under 
the  protection  of  the  constitution  of  the  United  States,  and  is  irrevocable 
and  inviolable  by  any  act  of  the  legislature,  or  even  a  subsequent  con- 
stitutional convention  of  the  state,  without  the  consent  of  the  corpora- 
tion. This  has  been  settled  since  the  Dartmouth  College  case  (4  Wheaton, 
U.  S. ,  468),  and  is  now  supported  and  strengthened  by  a  long  and  un- 
broken chain  of  authorities. 

Tennessee  authorities, — 9  Bax.,  442;  3  Cold.,  88,  496;  1  Sneed,  114;  9 
Yer.,  488:  11  Lea,  336;  3  Hum.,  305;  1  Heis.,  284;  3  Tenn.  Chy.,  405;  13 
Lea,  400;  2  Pickle,  614;  3  Pickle.  155;  1  Head,  81;  3  Sneed,  629. 

United  States  authorities.— 80  U.  S.,  568  (13  Wall.,  264);  83  U.  S.,  326 
(16  Wall.,  244);  87  U.  S..  282  (20  Wall.,  36);  29  U.  S.,  938-9  (4  Peters.  514); 
1  Black,  436;  117  U.  S.,  129  (830),  139  (833);  4  Wheat.  (U.  S.),  468. 

SEC.  35.  Exemption  from  military,  jury,  and  road  duty.— 

The  president,  directors,  clerks,  agents,  officers,  and  servants 
of  said  company  shall  be  exempt  from  military  duty,  except 
in  cases  of  invasion  or  insurrection,  and  shall  also  be  exempt 
from  serving  on  juries  and  working  on  public  roads. 

This  is  class  legislation,  and  unconstitutional.     4  Lea,  316. 

This  section  was  first  decided  to  be  valid  in  Alabama.  Johnson  v. 
State  (1890),  41  A.  &  E.  R.  R.  Cases,  275,  but  subsequently  overruled.  91 
Ala.,  70;  53  A.  &  E.  R.  R.  Cases,  37. 

SEC.  36.  Slaves,  power  tO  buy. — The  company  shall  have 
full  power  and  authority  to  purchase  and  own  such  number  of 
slaves  as  may  be  necessary  for  the  construction  of  said  road, 
and  for  keeping  the  same  in  repair. 

Slavery  abolished  by  Constitution  1870.     See  3  Heis.,  653;  2  Cold.,  14. 

SEC.  37.  Directors  trustees  in  case  of  dissolution.— if,  by 

decree  or  otherwise,  the  said  corporation  shall  be  dissolved,  the 
president  and  directors  of  said  company  are  created  trustees, 
with  such  powers  only  as  may  be  necessary  to  collect  the  debts 
due  the  company,  preserve  the  property,  pay  the  debts,  and 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  23 

distribute  the  projxjrty  and  effects  of  the  company  to  those  who 
may  be  entitled  thereto  under  the  charter. 

For  what  causes  dissolution  may  take  place,  see  Charter,  subhead 
"  Forfeiture  of,''  herein. 

SEC.  38.  Exemption  from  taxation.— The  capital  stock  of 

said  company  shall  lie  forever  exempt  from  taxation,  and  the 
road,  with  all  its  fixtures  and  appurtenances,  including  the  work- 
shops, warehouses,  and  vehicles  of  trans|x>rtation,  shall  be  ex- 
empt from  taxation  for  the  period  of  twenty  years  from  the 
completion  of  the  road,  and  no  longer. 

1.  Under  this  section,  an  elevator,  though  situated  outside  the  right 
of  way,  if  necessary  and  used  as  a  depot  or  warehouse,  and  located  at 
such  a  distance  on  account  of  natural  disadvantages,  was  exempt,  during 
the  twenty  years,  together  with  the  side  track,  etc.,  necessary  to  connect 
it  with  the  road,  and  the  land  on  which  both  are  constructed.     State  a?id 
County  v.  N.,  C.  &  St.  L.  Ry.,  2  Fickle,  438. 

2.  Exemptions  from  taxation  iu  charters  prior  to  1 870  and  accepted  by 
corporators  and  acted  upon,  is  a  contract  binding  upon  state  which  can- 
not be  impaired  by  subsequent  legislation  or  constitutional  provisions. 
2  Pickle,  614;  3  Cold.,  88,  496;  1  Sneed,  114;  9  Yen.  488. 

See,  also,  13  Lea,  400;  11  Lea.  336;  9  Wax..  442.  546;  8  Bax.,  539;  6  Kax., 
415,  441;  3  Pickle,  155:  3  Hum..  305:  1  Heis.,  284;  3  Sneed,  629;  1  Head,  81. 
See,  also,  80  U.  S.,  568;  83  U.  S.,  326:  87  U.  S.,  282;  29  U.  S..  939. 

3.  The  exemption  of  the  shares  of  stock  from  taxation  in  this  section, 
applies  to  shares  in  hands  of  individual  stockholders.     117  U.  S.,  830. 

4.  A  grant  to  railroad  of  all  rights,  powers,  and  privileges  of  another 
company  entitles  it  to  the  same  exemptions  from  taxation  that  other 
company  had.     117  U.  S.,  833. 

For  right  of  purchaser  of  railroad  as  to  exemptions,  see  12  Lea,  583. 

SEC.  39.  Road  tO  be  Completed  When. — The  railroad  author- 
ized by  this  act  shall  be  commenced  within  three  years  after 
the  pas-age  of  this  act,  and  shall  be  finished  within  six  years 
thereafter;  otherwise  the  charter  hereby  granted  shall  be  void. 

Charter  privileges  must  be  exercised  within  the  time  limited  by  the 
charter  or  subsequent  legislation.  Korer  on  Railroads,  p.  332. 

SEC.  40.  Branches,  who  may  build,  duty  of  this  road  as  to. 

— Any  individual  or  individuals,  company  or  body  corporate, 
with  permission  of  the  legislature  of  this  state,  may  hereafter 
construct  branches  to  unite  with  the  said  Nashville  &  ^J""100 
Chattanooga  Railroad;  and  it  shall  be  the  duty  of  5n"rShtto 
said  company,   when  required,   to  receive  on  their  cJrs'over.'ttc 
road  the  full  loaded  freight  cars  from  such  branches,  and  trans- 
port the  same  to  their  destination,  and  to  return  them  without 
changing  the  loads  thereof,  or  charging  for  the  transjwrtation 


24  ORIGINAL    CHARTER    OF    THE 

of  the  goods,  wares,  merchandise,  and  produce  therein  any 
greater  rate  of  freight  than  they  charge  for  similar  goods, 
wares,  merchandise,  and  produce  in  their  own  cars;  Provided^ 
That  the  company  shall  not  be  compelled  to  receive  such  cars 
on  their  road  unless  they  are  constructed  in  the  same  manner 
and  are  of  equal  strength  with  their  own  cars,  of  which  the 
engineer  of  the  main  road  shall  be  the  judge;  And  provided, 
That  the  company  shall  not  be  required  to  receive  any  cars  from 
what  freight  sucn  branches  without  receiving  payment  for  at  least 
branches.  twenty  miles  transportation;  And  provided  also, 
That  the  said  company  shall  be  entitled,  in  all  respects,  to  sim- 
ilar and  equal  privileges  on  any  branches  constructed  to  unite 
with  their  road,  subject  to  the  same  restraints.  (Acts  Tenn., 
1845-6,  ch.  1,  passed  December  11,  1845.) 

1.  Connecting  road,  or  branch,  however  short,  under  this  section,  may 
be  charged  by  this  company  the  regular  freight  for  at  least  tioenty  miles, 
and  unless  it  is  paid  this  company  is  not  required  to  receive  it.     It  is 
questionable  whether  this  clause  is  valid  now. 

2.  The  privilege  granted  other  roads  of  connecting  with  this  is  oblig- 
atory while  this  section  is  in  force,  but  the  section  may  be  repealed  by 
subsequent  legislation,  as  it  is  not  in  the  nature  of  a  contract.     See  Rorer 
on  Railroads,  p.  28. 

3.  One  railroad  cannot  bind  connecting  road  as  to  rates  to  be  charged, 
unless  by  agreement  between  them.     7  Bax. ,  345. 

4.  If  articles  shipped  are  of  different  character  than  those  named  in 
bill  of  lading,  and  upon  which  rates  are  higher,  connecting  line  may 
transport,  charge,  and  collect  increased  rate.     7  Bax.,  345. 

5.  Receiving  carrier  is  liable  for  goods  lost  by  connecting  line,  in  the 
absence  of  agreement  or  clause  in  bill  of  lading  to  the  contrary.    6  Heis., 
143,  208. 

6.  If  liability  is  not  restricted,  and  goods  are  consigned  to  a  point  be- 
yond terminus,  but  on  line  of  connecting  route,  carrier  is  bound  to  de- 
liver at  destination.     7  Heis..  253. 

7.  Trains  of  one  road  running  over  connecting  line  and  under  exclusive 
control  of  its  own  servants,  are  liable  for  all  damages  occurring  through 
negligence;  but  if  servants  of  both  companies  jointly  control  the  train, 
both  companies  are  liable.     6  Heis.,  347. 

8.  Branch  roads. — As  to  right  of  this  company  to  build  branch  roads, 
see  discussion  herein  under  Branch  Roads;  refer  to  index. 

9.  Same.— Under  Acts  of  Tenn.,  1849-50,  ch.  CCLXVI.,  sec.  3,  it  was 
provided  that  "the  Shelby ville  branch  and  all  other  branches  as  may  be 
made,  shall  have  all  the  rights  and  privileges  and  be  placed  in  all  re- 
spects on  the  same  footing  with  the  Nashville  &  Chattanooga  Railroad. 
This  is  a  very  important  act,  and  one  that  has  heretofore  been  over- 
looked.    Under   it  all  branches  lawfully  constructed   by  this  railway 
have  all  the  rights  and  privileges  of  the  main  stem.     See  discussion 
herein;  refer  to  index. 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.  25 


CHAPTER  II. 

ACTS  AND  DECREES  AMENDING  CHARTER  OF  AND  RELATING 

TO  THE  MAIN  STEM  OF  THE  N.,  C.  4  ST.   L.   KF.   WHICH 

WAS  FORMERLY  THE  N.  A  C.  R.  R.  CO.,  IN  TEN- 

NESSEE,  ALABAMA.  AND  GEORGIA. 

This  chapter  contains  only  those  decrees  and  acts  relating  ercl'ttirely  to  the  main  stem 
of  the  N..  C.  A  St.  L.  Ry..  which  was  formerly  the  Nashville  &  Chattanooga  Railroad  Com- 
pany. Decrees  and  acts  affecting  its  other  branches,  such  as  its  Northwestern  branch. 
Lebanon  branch,  etc..  will  be  found  in  subsequent  chapters  relating  to  those  roads.  As  the 
original  Nashville  A  Chattanooga  Railroad  Company  ran  through  a  portion  of  Tennessee, 
Alabama,  and  Georgia,  this  chapter  will  contain  all  decrees  and  acts  of  those  states  affect- 
ing the  road,  in  the  order  mentioned. 

DECREES. 

N.  &  C.  R.  R.  Co.  ET  AL.,  Ex  PARTE.     [PETITION.] 

Decree  Changing  name. — This  cause  came  on  to  be  heard 
May  31,  1S73,  before  the  Hon.  W.  F.  Cooper,  chancellor,  pend- 
ing in  the  chancery  court  for  the  county  of  Davidson,  state  of 
Tennessee,  upon  the  petition  of  the  Nashville  &  Chattanooga 
Railroad  Company,  incorporated  by  the  general  assembly  of 
Tennessee,  and  of  its  directors,  E.  VV.  Cole,  Thomas  C.  White- 
side,  Godfrey  M.  Fogg,  Thomas  Lipscomb,  John  F.  Anderson, 
John  B.  Hawkins,  John  W.  Childress,  W.  S.  Huggins,  A.  E. 
Patton,  lien  May,  V.  K.  Stevenson,  John  M.  Bass,  Edward  L. 
Jordan,  Jackson  Pryor,  John  P.  King,  John  Frizzell,  W.  R. 
Butler,  and  A.  Frierson,  the  last  two  being  state  directors,  when 
it  appeared  to  the  court  that  on  January  9,  1873,  the  petition 
in  this  cause  was  filed,  and  which  has  been  enrolled  in  book  No. 
3,  page  169,  and  that  by  said  petition  the  court  is  asked  to 
pronounce  a  decree  amending  the  charter  of  said  company  as 
specified  in  said  petition;  that  on  January  27,  1873,  the  clerk 
and  master  of  this  court  caused  publication  to  be  made  for 
thirty  days  in  the  Republican  Banner*  a  ne\vsp!i|>er  published  in 
the  city  of  Nashville,  Tennessee,  which  publication  was  in  the 
words  and  figures  following,  to  wit: 


26      DECREES  AND  ACTS  OF  TENNESSEE  RELATING  TO 

No.  7423. 

IN    CHANCERY    AT    NASHVILLE. 
STATE  OF  TENNESSEE, 

OFFICE  CLERK  AND  MASTER  CHANCERY  COURT. 

NASHVILLE,  January  27,  1873. 

WHEREAS,  The  Nashville  &  Chattanooga  Railroad  Company 
and  its  directors,  E.  W.  Cole,  president,  and  others,  have  filed 
their  petition  in  this  court  to  have  the  charter  of  said  company 
amended  as  follows,  viz. :  That  said  corporate  body  shall  be 
known  and  designated  by  the  name  and  title  of  "The  Nashville, 
Chattanooga  &  St.  Louis  Railway"  instead  of  the  Nashville  & 
Chattanooga  Railroad  Company:  It  is  therefore  ordered  that 
all  persons  desiring  to  resist  the  amendment  of  said  charter  or 
the  granting  the  prayer  of  said  petitioners,  enter  their  appear- 
ance herein  at  the  courthouse  at  Nashville,  Tennessee,  on  the 
first  Monday  in  April  next,  1873,  that  being  the  next  regular 
term  of  said  court,  and  then  and  there  show  cause,  if  any  they 
have  or  can,  why  the  prayer  of  said  petitioners  and  the  amend- 
ment of  said  charter  should  not  be  granted,  or  the  matter  of 
said  petition  will  be  heard  ex  parte,  and  that  a  copy  of  this 
order  be  published  for  thirty  days  in  the  Nashville  Republican 
Banner.  NATHANIEL  BAXTER,  JR., 

Clerk  and  Master. 

FOGG,  WHITESIDE  &  FRIZZELL, 

Solicitors  for  Petitioners. 

It  also  appearing  to  the  court  that,  by  an  act  of  the  general 
assembly  of  the  state  of  Tennessee,  ch.  1,  passed  December  11, 
1845,  entitled  "An  act  to  incorporate  the  Nashville  &  Chatta- 
nooga Railroad  Company,"  and  the  act  amendatory  thereof, 
the  said  Nashville  &  Chattanooga  Railroad  Company  was  incor- 
porated for  the  purpose  of  establishing  a  communication  by 
railroad  between  Nashville  &  Chattanooga,  in' the  state  of  Ten- 
nessee; that,  by  said  acts  of  the  assembly  and  others  of  a  gen- 
eral character,  there  were  conferred  upon  said  company  the 
powers  and  privileges  incident  and  necessary  to  the  transaction 
of  the  business  for  which  it  was  incorporated,  and  among  which 
was  the  power  to  purchase  and  own  connecting  roads;  that  said 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  27 

company  has  purchased,  and  is  now  the  owner,  of  the  railroad 
known  as  the  Nashville  &  Northwestern  Railroad,  running  from 

'  O 

Nashville,  Tennessee,  to  Hickman,  in  Kentucky,  in  the  direc- 
tion of  St.  Louis,  in  Missouri;  that,  under  the  authority  afore- 
said, said  company  is  now  operating  a  railroad  from  Chatta- 
nooga, via  Nashville,  to  Hickman,  its  principal  office  being  at 
Nashville;  that  the  |>ersons  named  as  directors  in  said  peti- 
tion constitute  the  president  and  directors  of  said  company; 
that,  in  pursuance  of  the  provisions  of  sec.  34  of  said  act  of 
December  11,  1845,  the  said  president  and  directors  unani- 
mously petition  that  the  charter  of  said  company  may  be 
amended  in  the  manner  mentioned  in  the  petition  filed  in  this 
court.  It  also  appeared  that  no  person  has  appeared  to  show 
cause  why  the  prayer  of  said  petition  should  not  be  granted. 

The  court  being  satisfied  that  the  prayer  of  said  petition  is 
legitimate  and  proper,  and  deeming  the  same  necessary,  and 
not  inconsistent  with  the  statutory  provisions  upon  the  subject 
nor  the  general  laws  of  the  state,  nor  hurtful  to  the  public 
good,  doth  order,  adjudge,  and  decree,  in  pursuance  of  the 
powers  vested  in  courts  of  chancery  by  virtue  of  paragraph  23, 
sec.  15,  of  the  acts  of  the  general  assembly  of  Tennessee,  ch. 
54,  approval  January  30,  1871,  entitled  "An  act  to  authorize 
the  chancery  courts  of  this  state  to  grant  letters  of  corporation;" 
that  the  act  of  the  general  assembly  aforesaid,  incorporating 
the  Nashville  &  Chattanooga  Railroad  Company,  passed  Decem- 
ber 11,  1845,  be  altered,  amended,  and  changed  so  that  said 
company  and  body  corporate  shall  be  known  and  designated  by 
the  name  and  style  of  "The  Nashville,  Chattanooga  &  St. 
Louis  Railway,"  instead  of  the  "Nashville  &  Chattanooga 
Railroad  Company,"  according  to  the  prayer  of  the  petition 
filed  in  this  cause.  It  is  further  ordered  that  the  Nashville  & 
Chattanooga  Railroad  Company  pay  the  costs  of  this  proceed- 
ing, for  which  execution  may  issue,  and,  upon  the  payment  of 
the  same,  the  clerk  and  master  will  issue  a  certified  copy  of  this 
decree  for  registration.  (Registered  May  31,  1873,  in  minute 
book  "X,"  p.  220-222,  in  chancery  court  at  Nashville,  Tenn.) 

1.  This  decree,  changing  the  name  of  the  corporation  to  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  was  clearly  within  the  power  of 


28  DECREES    AND    ACTS    OF    TENNESSEE    RELATING    TO 

the  chancery  court  at  that  time,  and  the  decree  is  valid.  3  Bax.,  98;  1 
Tenn.  Chy.  Rep.,  83,  95,  97.  See,  also,  12  Lea,  97,  103;  11  Lea,  3;  9  Lea, 
380;  1  Lea,  462. 

2.  For  decree  of  chancery  court,  amending  the  charter  in  other  re- 
spects, see  further  on  in  this  chapter. 

ACTS  OF  TENNESSEE  AMENDING  CHARTER. 

1.  Charter  amended,  allowing  stockholders  one  vote  for  each 

share  of  stock. 

SECTION  4.  Be  it  further  enacted,  That  the  charter  of  the  East 
Tennessee  &  Virginia  Railroad  Company,  and  of  all  other  rail- 
roads in  the  state,  be  so  amended  that  hereafter,  in  all  elections 
held  by  any  of  said  companies,  every  stockholder  shall  be  enti- 
tled to  one  vote  for  each  share  of  stock  owned  by  him,  pro- 
vided it  shall  not  interfere  with  the  vested  rights  of  said  com- 
panies. 

SEC.  5.  That  this  act  shall  take  effect  from  and  after  its 
passage.  (Acts  Tenn.,  1868-9,  ch.  2,  sec.  4,  p.  83.) 

1.  This  amendment  was  accepted  by  the  company  September  20,  1875, 
and  now  in  all  elections  each  share  is  entitled  to  one  vote.     See  discus- 
sion of  rig-ht,  method,  and  scale  of  voting,  herein.     Refer  to  index. 

2.  Previous  to  this  time  the  chancery  court  at  Nashville  had  amended 
the  charter  of  the  company  so  as  to  allow  "the  owner  of  one  or  more 
shares,  up  to  and  including  four,  one  vote;  the  owner  of  a  greater  num- 
ber of  shares  than  four,  one  vote  for  each  four  shares  over  and  above 
four.''     Entered  May  13,  1872,  minute  book  "  V,"  p.  174. 

2.  Charter  amended,  stockholders  at  any  meeting  may  fix 

time  and  pla'ce  of  next  meeting. 

SECTION  IV.  Be  it  further  enacted,  That  the  charter  of  the 
Nashville  &  Chattanooga  Railroad  Company  be  so  amended  that 
the  stockholders  may  at  any  meeting  fix  on  the  day  and  place 
or  places  where  the  subsequent  meetings  of  stockholders  and 
election  of  directors  shall  be  held. 

SEC.  V.  Be  it  further  enacted,  That  this  act  shall  take  effect 
from  and  after  its  passage.  (Acts  Tenn.,  1857-8,  ch.  8,  sec.  4; 
passed  November  11,  1857.) 

3.  Charter  amended,  directors  to  make  by-laws  and  appoint 

judges  and  clerks  of  future  elections,  dividends  on  stock. 
how  paid. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the  State 
of  Tennessee,  That  the  board  of  commissioners  of  the  Nashville 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.  29 

&  Chattanooga  Railroad   is   hereby  authorised    and   Eject|0n0f 
empowered  to  appoint  three  judges  and  two  clerks,   dlrecwrs- 
for  the  purpose  of  holding  an  election  for  h'fteen  directors  of 
said  company  on  January  24,  1848,*  and  upon  the  certificate 
of  said  judges  the  said  directors  shall  be  authorized   TO  make  by- 
to  qualify  as  directors,  and  to  make  all  rules,  regu-  etc. 
lations,  and  by-laws  necessary  for  the  government  of  said  com- 
pany and  management  of  its  affairs  not  inconsistent  with  the 
general  laws  of  the  land. 

*  Up  to  this  time  there  was  no  board  of  directors;  hence  there  could 
be  no  unanimous  petition  of  the  president  and  directors,  and  no  unani- 
mous acceptance  and  adoption,  as  prescribed  in  section  34  of  the  charter, 
and  this  mode  was  adopted  in  lieu  of  the  one  therein  prescribed  for  the 
ascertaining  of  the  consent  of  the  corporation  to  an  amendment  of  its 
charter. 

At  the  first  meeting  of  the  stockholders,  as  provided  in  this  act,  the 
following  resolution  was  unanimously  adopted:  "Resolved  (a  majority 
of  the  stockholders  now  agreeing  thereto),  That  the  assent  of  the  com- 
pany is  hereby  given  to  the  amendments  proposed  in  their  original  char- 
ter by  an  act  of  the  general  assembly  of  the  state  of  Tennessee,  passed 
January  21,  1848,  entitled  'An  act  to  amend  the  charter  of  the  Nashville 
«i  Chattanooga  Railroad  Company/" 

It  will  be  observed  that  the  first  section  of  this  act  so  amends  the 
ninth  section  of  the  original  charter  as  to  confer  upon  the  directors  the 
power  to  make  ''all  rules,  regulations,  and  by-laws, "etc.,  instead  of  the 
stockholders  at  their  first  meeting,  as  provided  in  said  ninth  section. 

SEC.  2.  Be  it  enacted,  That  the  board  of  directors  of  said 
company  shall  have  power  to  appoint  three  judges  Board  to  ap- 

,  point  judges 

and  two  clerks,  from  year  to  year,  for  the  purpose  and  clerks, 
of  holding  elections  for  directors. 

SEC.  3.  Be  it  enacted,  That  the  charter  of  said  company  be 
further  so  amended  that  the  said  company  be  re-  paid  stock  to 
quired  to  estimate  and  pay  semiannually,  to  the  sev-  terest.  how. 
eral  holders  thereof,  a  sum  equal  to  six  per  cent,  per  annum  on 
the  capital  stock  of  said  company  actually  paid  in,  to  be  charged 
to  the  cost  of  construction;  Provided,  A  majority  of  the  stock- 
holders at  their  first  regular  meeting  agree  thereto.  (Acts  Tenn. , 
1847-8,  ch.  70,  passed  January  21,  1848.) 

4.  Charter  amended  allowing  city  of  Charleston  and  the 
Georgia  Railroad  &  Banking  Co.  to  have  representation 
in  board  of  directors. 

SECTION  1.  Be  it  enacted  by  t/te  General  Axxetnbly  of  the 
State  of  Tennessee,  That  the  charter  of  the  Nashville  &  Chatta- 


30  DECREES    AND    ACTS    OF    TENNESSEE    RELATING    TO 

nooga  Railroad  Company  is  hereby  so  amended  that  it  may  be 
lawful  for  the  city  of  Charleston,  in  South  Carolina,  to  appoint 
two  of  her  citizens  to  represent  her  stock  in  said  company  as 
directors  of  the  board  of  said  company,  with  all  the  powers 
and  privileges  which  belong  to  the  other  directors;  and,  in  like 
manner,  the  Georgia  Railroad  &  Banking  Company  shall  have 
the  right  to  appoint  one  director  to  represent  its  stock;  Pro- 
vided, That  eight  of  the  directors  shall  hereafter,  as  heretofore, 
constitute  a  quorum  for  the  transaction  of  business.  (Acts 
Tenn.,  1849-50,  ch.  266,  p.  530.) 

The  city  of  Charleston  subscribed  for  §500,000  of  the  stock  in  this 
company,  as  per  its  ordinance  passed  April  11,  1848,  and  the  Georgia 
Railroad  &  Banking  Company  subscribed  for  $250,000,  as  per  resolution 
of  that  company  also  passed  April  11,  1848,  the  conditions  of  each  sub- 
scription being,  among  other  things,  that  they  should  be  allowed  repre- 
sentation in  the  board;  hence  the  above  act. 

5.  Charter  amended,  may  lease  Winchester  &  Alabama  Rail- 
road, and  any  other  railroad  connecting  with  Nashville 
&  Chattanooga  Railroad  Company,  how. 

SECTION  1 .  Re  it  enacted  by  the  General  Assembly  of  the  State 
of  Tennessee,  That  the  Nashville  &  Chattanooga  Railroad  Com- 
pany are  hereby  authorized  and  empowered  to  lease  the  Win- 
chester &  Alabama  Railroad,  and  the  branch  to  Fayetteville, 
or  any  other  railroad  connecting  with  said  Nashville  &  Chatta- 
nooga Railroad,  for  such  time  and  upon  such  terms  and  condi- 
tions as  may  be  agreed  upon  between  the  president  and  direct- 
ors of  the  said  Nashville  &  Chattanooga  Railroad  Company  and 
the  president  and  directors  of  the  railroad  company  contracted 
with. 

SEC.  2.  Be  it  further  enacted,  That  the  companies  of  all  lat- 
Extended  to  era^s  an^  main  line  railroad  companies  shall  be  en- 
other  roads.  titie(j  to  the  benefits  of  this  act,  and  shall  have  the 
benefits  and  privileges  and  powers  conferred  on  the  said  com- 
panies mentioned  in  the  first  section  of  this  act. 

SEC.  3.  Be  it  further  enacted,  That  all  railroad  companies 
availing  themselves  of  the  provisions  of  this  act,  as  well  as  the 
companies  specified  in  the  first  section,  shall,  in  the  hands  of 
the  lessees,  be  liable  to  all  liens  in  favor  of  the  state,  and  to  all 
liabilities  imposed  by  their  charters  or  the  general  law  of  the 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  31 

land,  in  the  same  manner  that  the  company  or  companies  to 
leasing  would  have  been  had  no  lease  been  made;  I*roi*idtd, 
That  the  payment  of  the  sinking  fund  provided  for  by  existing 
laws  shall  l>e  secured  by  the  company  so  leasing  said  road. 
(ActeTenn.,  1857-8,  ch.  8;  passed  November  11,  1857.) 

Since  the  passage  of  this  act  there  have  been  enacted  ample  general 
laws  for  leasing  of  railroads.     See  Leutse,  herein.     Refer  to  index. 
This  act,  however,  is  still  in  force.     The  general  laws  furnish 
methods. 


6.  Nashville  &  Chattanooga  Railroad  allowed  to  subscribe  for 
stock  in  Chattanooga,  Harrison,  Georgetown  &  Charles- 
ton Railroad  Company. 

Be  it  enacted,  That  the  Nashville  &  Chattanooga  Railroad 
Company,  the  East  Tennessee  &  Georgia  Railroad  Company, 
and  the  Memphis  &  Charleston  Railroad  Company,  shall  each 
be  authorized  to  subscribe  for  stock  in  the  Chattanooga,  Har- 
rison, Georgetown  &  Charleston  Railroad  Company,  provided 
the  stockholders  of  the  company  proposing  to  make  a  subscrip- 
tion agree  thereto.  (Acts  Tenn.,  1853-4,  ch.  319,  sec.  20; 
passed  February  24,  1854.) 

ACTS  OF  TENNESSEE  RELATING  TO  NASH- 

VILLE &  CHATTANOOGA  RAILROAD 

COMPANY. 

1.  Bridge  over  Tennessee  river  allowed  to  be  constructed  by 
Tennessee  legislature,  how. 

SECTION  2.  Be  it  further  enacted,  That  whereas  a  consid- 
erable portion  of  the  bridge  authorized  by  the  act  entitled  "An 
act  to  amend  the  charter  of  the  Nashville  &  Chattanooga  Rail- 
road Company,"  passed  January  19,  1850,  has  been  recently 
destroyed  by  tire;  and,  whereas,  the  said  railroad  company,  in 
erecting  their  bridge,  constructed  a  drawbridge,  which  remains 
in  the  portion  not  consumed  by  the  recent  burning,  that  the 
aforesaid  act  be  so  amended  that  the  said  Nashville  &  Chatta- 
nooga Railroad  Company  shall  not  be  required  to  build  any 
part  of  their  bridge  thirty  feet  or  at  any  other  particular  eleva- 
tion above  extreme  high-water  mark,  provided  they  keep  and 
maintain  a  g<x>d  draw  or  revolving  bridge,  opening  to  a  width 


32  DECREES    AND    ACTS    OF    TENNESSEE    RELATING    TO 

sufficient  to  allow  the  free  passage  of  steamboats  and  other 
water  crafts,  and  so  as,  when  open,  to  leave  a  clear  space  be- 
tween the  piers  at  the  draw  at  least  sixty  feet.  (Acts  Tenn., 
1855-6,  ch.  239,  sec.  2,  p.  487;  passed  January  3,  1856.) 

The  old  bridge  that  was  burned  was  required  to  be  at  least  thirty 
feet  above  extreme  high-water  mark  between  the  two  piers  next  to  the 
western  bank,  or  an3'  two  piers  the  company  might  deem  best,  the  dis- 
tance, however,  between  the  two  so  selected  to  be  at  least  one  hundred 
and  sixty  feet.  (Acts  Tenn.,  1849-50,  ch.  266,  sec.  2.) 

Alabama  acts. — The  legislature  of  Alabama,  by  Acts  1849-50,  No. 
123,  sec.  2,  passed  a  similar  act  to  that  of  Tennessee  of  1849-50,  ch. 
266,  sec.  2,  as  set  out  above,  and  subsequently  passed  an  act  identical 
with  that  of  Tennessee  of  1855-6,  ch.  239,  p.  487,  also  above  set  out.  See 
Acts  Ala.,  1855-6,  p.  11.  in  this  chapter. 

After  the  bridge  had  been  built  and  the  draw  put  in,  under  the  Acts 
of  1855-6,  p.  11,  of  Alabama,  and  Acts  of  1855-6,  ch.  239,  p.  487,  of  Ten- 
nessee, the  legislature  of  Alabama,  by  Acts  1888-9,  p.  443,  again  required 
the  bridge  to  be  at  least  thirty  feet  above  extreme  high  water,  etc.  This 
part  of  the  act,  however,  is  void  as  against  the  company's  vested  rights. 
It  is  further  inoperative,  as  congress,  under  Acts  1888  and  1890.  has  now 
taken  charge  of  bridges  over  navigable  streams.  See  discussion  of  this 
in  notes  to  sec.  22  of  Nashville  &  Chattanooga  Railroad  charter. 

2.  Nashville  &  Chattanooga  Railroad  Company  allowed  to  con- 
tract with  Memphis  &  Charleston  Railroad  for  use  of 
road  between  Stevenson  and  Chattanooga,  how;  state  aid. 

SECTION  1.    Be  it  enacted  by  the  General  Assembly  of  the  State 
of  Tennessee,  That  the  Memphis  &  Charleston  Railroad  Com- 
pany and  Nashville  &  Chattanooga.Railroad  Company 

Joint  use  of  J  J 

steve/soTto  may'  ^v  agreement,  contract  for  the  joint  use  or 
Chattanooga,  ownership  of  that  part  of  the  Nashville  &  Chatta- 
nooga Railroad  extending  from  Stevenson  to  Chattanooga,  on 
such  terms  as  said  companies  may  mutually  agree  upon. 

SEC.  2.  The  contract,  if  made,  shall  be  submitted  to  the  gov- 
ernor and  road  commissioner  of  the  state,  and,  if  approved  by 
Contract  to  them,  then,  in  order  to  provide  for  the  extension  in 
by  governor,  making  necessary  additional  tracks  and  otherwise 
preparing  the  road  to  accommodate  fully  the  trains  and  busi- 
ness of  both  companies,  and  to  enable  the  Memphis  &  Charles- 
ton Company  to  comply  with  the  contract  of  consolidation,  the 
said  Memphis  &  Charleston  Railroad  Company  shall  be  entitled 
to  receive  from  the  governor  such  state  bonds  as  are  issued 
Bondsforim-  under  the  internal  improvement  laws  of  the  state,  to 
prov  n  ic  ,  an  amoun{.  eqUai  ^0  one-half  of  the  amount  heretofore 


N  \-ll\ll.I.K.    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  33 

•jiven  by  law  to  said  company,  to  enable  them  to  make  an  in- 
< Impendent  extension  of  their  road  to  Chattanooga,  and,  in  lieu 
of  ->aid  former  grant  of  state  aid,  the  amount  to  be  ascertained 
by  report  of  the  road  commissioner  to  the  governor. 

SEC.  3.   For  the   payment  of  such    bonds  and   the   interest 
thereon,   the  said   Memphis  &  Charleston  Railroad  Company 
shall    be  liable,  and   their  entire  road  and  appurtenances  be 
lx>und,  to  the  state  in  the  same  manner  as  for  state 
bonds  heretofore  issued  to  said  company;   Provided, 
That  section  5  of  an  act  passed  February  21,  1856,  ch.  120, 
shall  apply  in  full  force  to  said  Memphis  &  Charleston   Rail- 
road Company. 

SEC.  4.  The  bonds  of  the  state  shall  not  issue  to  said  com- 
pany until  it  shall  have  expended  twenty  thousand  Nottoissue 
dollars  in  the  improvement  of  said  Nashville  &  Chat-   tin  when- 
tanooga  Railroad  from  Stevenson  to  Chattanooga,  this  fact  to 
l>e  ascertained  by  report  of  the  commissioner  of  roads  and  con- 
firmed by  the  governor,  and  the  balance  of  the  bonds  to  be 
issued  shall  not  be  issued  to  a  greater  amount  than  the  amount 
of  work  actually  done  by  said  company  at  the  time  of  applica- 
tion, according  to  the  true  intent  and  meaning  of  the  foregoing 
provisions.     (Acts  Tenn.,  1857-8,  ch.  150;  passed  March  19, 

1858.) 

Trains  of  one  road  running  over  connecting  line  and  under  exclusive 
control  of  its  own  servants,  is  liable  for  all  damages  occurring  through 
negligence.  Kut  if  servants  of  both  companies  jointly  control  the  train, 
both  companies  are  liable.  6  Heis.  (Tenn.),  347. 

3.  Shelbyville  branch  and  other  branches  to  have  rights  and 
privileges  of  Nashville  &  Chattanooga  Railroad  Company. 

SEC.  3.  Be  it  enacted,  That  the  Shelbyville  branch,  and  such 
other  branches  of  the  Nashville  &  Chattanooga  road  as  may  be 
made,  shall  have  all  the  rights  and  privileges,  and  shall  be 
placed  in  all  respects  on  the  same  footing  with  the  Nashville  & 
Chattanooga  road;  Provided,  That  nothing  in  this  act  shall  be 
so  construed  as  to  diminish  the  liability  of  the  stockholders  of 
the  company  in  any  way.  (Acts  Tenn.,  1849-50,  ch.  266, 
sec.  3;  passed  January  19,  1850.) 

This  is  a  very  important  act.     It  does  not  expressly  confer  the  power 
on  the  railway  company  to  build  brunches  in  the  future,  but  it  at  least 
3 


34  DECREES    AND    ACTS    OF    TENNESSEE    RELATING    TO 

clothes  the  branches  that  it  acquires  the  right  to  build,  with  all  the 
rights  and  privileges  of  the  main  stem. 

4.  Watchman  at  Church  street  crossing  in  Nashville  required. 

SEC.  5.  Be  it  further  enacted,  That  it  shall  be  made  the  duty 
of  the  president  and  directors  of  the  Nashville  &  Chattanooga 
Railroad  Company  to  keep  at  the  crossing  at  the  depot  in  the 
city  of  Nashville  a  man  employed  to  notify  travelers  or  persons 
passing  on  the  Richland  turnpike  of  the  approach  and  departure 
of  the  cars,  and  that  said  cars  shall  not  blow  their  whistle  in 
coming  into  or  going  out  of  said  depot;  that  it  shall  be  a  mis- 
demeanor in  the  superintendent  at  said  depot  to  violate  this  act, 
and  punished  as  other  cases  of  misdemeanor;  that  any  person 
or  persons  may  sue  for  and  recover  the  sum  of  one  hundred 
dollars  from  the  president  and  directors  of  said  road  for  a  vio- 
lation of  this  act.  (Acts  Tenn.,  1857-8,  ch.  130,  passed 
March  15,  1858.) 

This  act  was  not  made  as,  nor  accepted  by  the  company  as  an  amend- 
ment to  its  charter.  It  was  simply  a  police  regulation,  and  as  such  has 
doubtless  long  since  been  repealed  by  implication. 

5.  Nashville  &  Chattanooga  Railroad  Company  authorized  to 

lease  Nashville  &  Northwestern  Railroad,  terms  and 
conditions. 

AVHEREAS,   At  a  meeting  of  the  directors  of  the  Nashville  & 

Northwestern  Railroad  Company,  held  in  the  city  of 

Nashville  on    the    twenty-seventh  day  of   October, 

1869,  E.  \V.  Cole,   president  of  the  Nashville  &  Chattanooga 

Railroad  Company,    submitted  a  written   proposition,   on  the 

part  of  said  Nashville  &  Chattanooga  Railroad  Company,  for  a 

lease  to  said  company  of  the  Nashville  &  Northwestern  Railroad, 

for  a  term  of  six  years,  which  proposition  was  in  the  words 

and  figures  following: 

The  Nashville  &  Chattanooga  Railroad  Company  propose  to 

Proposition     lease  the  Nashville  &  Northwestern  Railroad,  for  a 
or  agreement  .  „      .  ,        „   ,,  , 

of  lease.         period  of  six  years,  upon  the  following  terms  and 

conditions: 

It  will  expend  upon  the  roadbed,  superstructures,  bridges, 
and  trestles,  and  in  the  repair  and  purchase  of  rolling 
stock,  within  the  next  six  months,  the  sum  of  $100,- 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.  35 

000,  and  as  speedily  as  possible  put  the  road  in  as  good  condi- 
tion as  other  connecting  roads,  and  supply  it  with  rolling  stock 
sufficient  to  meet  the  requirements  of  the  business  of  the  road 
in  freights  and  passengers,  and  of  the  same  quality  and  char- 
acter as  similar  rolling  stock  of  the  Nashville  &  Chattanooga 
road,  and  continue  to  keep  the  road  in  good  condition,  and  the 
rolling  stock  in  like  good  order  and  condition,  for  and  during 
the  full  term  of  the  lease,  and  the  same  is  fully  ended,  and  to 
return  the  road  and  rolling  stock  in  like  order  and  condition  at 
the  expiration  of  the  lease;  all  repairs,  improvements,  and 
additions  to  )>e  made  at  the  usual  reasonable  and  customary 
prices  for  the  time  being. 

The  present  rolling  stock,  materials,  and  personalty  of  the 
Nashville  &  Northwestern  Railroad  Company  on  hand,  and  to 
be  valued  by  three  persons,  one  to  be  selected  by 
each  of  the  contracting  parties,  and  they  to  select  a 
third,  and  taken  by  the  Nashville  &  Chattanooga  road  at  the 
valuation,  and  returned  in  kind  at  the  end  of  the  lease  upon 
like  valuation. 

The  road  shall  continue,  during  the  lease,  to  be  operated  on 

its  present  line,  and  upon  everv  part  of  it.  without 
.,...«..  .     '  Line  of  road, 

discrimination  against  any  part,  unless  with  the  con- 
sent of  the  board  of  directors  of  the  Nashville  &  Northwestern 
Railroad  Company,  and  the  lessee  shall  so  operate  as  to  foster 
:m<l  encourage  the  local,  as  well  as  through,  business;  and  such 
and  so  many  trains  for  the  accommodation  of  freight  and  pas- 
sengers shall  be  run  as  are  usual  and  customary  on  roads  of 
similar  length  and  importance,  and  necessary  to  perform  the 
business  offered. 

The  tariff    of    through  freights  and    passengers  are  to   l>e 
ratably  divided  between  the  roads  in  proportion  to 
the  length  of  the  two  roads  to  each  other,  or  the 
distances  carried  on  each,  and  the  local  earnings  are  to  l>e  cred- 
ited to  the  lessor. 

The  lessee  agrees  to  make  no  charge  for  use  of  tools,  rent  of 

shops,  or  yard  room,  or  pay  of  yardmen,  at  Nash- 

...       ,     .  ..     '  Tools,  etc. 

ville,  during  the  continuance  of  this  lease. 


36  DECREES    AND    ACTS    OF    TENNESSEE    RELATING    TO 

One-third  of  the  salaries  of  the  president,  superintendent, 
secretary  and  treasurer,  freight  and  passenger  agents,  and  en- 
officer  •  ai-  o'neer  °^  the  Nashville  &  Chattanooga  Railroad  Com- 
aries.  etc.  pany  shall  be  paid  out  of  the  earnings  of  the  Nash- 
ville &  Northwestern  Railroad,  and  the  share  of  the  lessor  of 
these  salaries  shall  not  exceed  the  following  sums:  President, 
$3,000  per  annum;  superintendent,  $2,000;  secretary  and 
treasurer,  $2,000;  general  freight  agent,  $500;  general  pas- 
senger agent,  $500;  engineer,  $1,000.  There  shall  also  be  paid 
out  of  the  earnings  of  the  road  the  salary  of  an  agent,  to  be 
appointed  by  the  board  of  directors  of  the  Nashville  &  North- 
western Railroad  Company,  as  hereinafter  provided,  to  super- 
intend the  interests  of  said  company  under  this  lease,  which 

salary  is  fixed  at  $ .     No  other  agent  or  officers  shall  be 

employed,  except  such  as  are  necessary  to  operating  the  road, 
and  devote  their  whole  time  and  attention  to  the  business  of  the 
road,  and  as  are  usual  in  such  cases,  who  shall  be  paid  out  of 
the  earnings  of  the  road  the  same  compensation  which  is  al- 
lowed similar  agents  and  officers  of  the  Nashville  &  Chattanooga 
Railroad  Company  for  similar  services.  The  board  of  directors 
of  the  Nashville  &  Northwestern  Railroad  Company  may  elect 

an  a»ent,  to  hold  his  office  during  the  pleasure  of  the 
Agent  of 

Northwestern  b°ai'd>  ^°  represent  said  company  and  protect  its 
Railroad.  interests  during  the  lease,  whose  duty  it  shall  be  to 
give  a  general  supervision  to  all  the  business  of  the  road,  and 
all  transactions  under  this  lease,  with  the  right  to  have  free  ac- 

7  O 

cess  at  all  times  to  the  rolling  stock,  property,  and  effects  used 
in  running  the  road,  with  a  view  to  ascertaining  its  condition, 
and  whether  any  or  what  repairs  are  required,  and  to  the  books 
of  the  business  of  the  two  roads,  so  far  as  they  relate  to  or  have 
any  connection  with  the  business  or  operations  under  this  lease. 
He  shall  be  consulted  as  to  all  expenses,  ordinary  or  extra- 
ordinary, but  without'  having  the   right  to   prevent  them,   if 
deemed  necessary  by  the  lessee.      If,  however,  the 
agent  shall  dissent,  the  matter  shall   be  suspended 
until  the  contracting  parties  have  come  to  some  agreement  or 
the  matter  arbitrated  as  hereinafter  provided. 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.  37 

The  agent  shall  make  a  report  to  the  board  of  the  lessor  at 
least  once  in  every  three  months,  or  of tener,  if  neces- 

Reports. 
sary  or  required. 

All  matters  of  difference  arising  under  this  lease,  either  as 
to  the  operation  of  the  road,  the  expense  incurred,  or  other- 
wise, which  cannot  be  amicably  adjusted  by  committees  of  the 

two  boards,  shall  be  submitted  at  once  to  the  arbit- 

,  ,,  -ii/i!  •     Arbitration, 

rament  and  award  of  three  railroad  officers  or  engi- 
neers, one  to  be  selected  by  each  of  the  parties  and  one  by 
these  two,  whose  decision  shall  be  final  and  binding  on  the  con- 
tracting parties. 

All  depot  houses,  sidings,  buildings,  and  appurtenances  of 
the  road  shall  be  returned  with  the  roadbed  and  roll-  Explration 
ing  stock,  in  good  order  and  condition,  at  the  expira-  of  lets*' 
tion  of  the  lease. 

Regular  and  exact  accounts  shall   be  kept  by  the  lessee  of 
all  the  earnings  and  expenditures  in  operating  the 
road,  to  which  the  agent  al>ove  provided  for  shall 
have  full  access;  and  monthly  reports  and  settlements  shall  be 
made  between  the  parties. 

The  lessee  is  to  have  control  of  the  road  and  of  its  operations 
under  the  lease,  and  to  receive  all  the  earnings  of  ite 
business,  and  shall  l>e  entitled,  out  of  these  earnings, 
to  pay  the  salaries  as  hereinbefore  provided,  and  all  the  ex- 
penses of  running  said  road,  and  to  reimburse  itself  the  money 
advanced  to  put  the  road  in  good  condition,  and  to  furnish  roll- 
ing stock  as  herein  stipulated,  with  interest. 

Any  surplus  of  earnings  after  these  disbursements  shall  be 
paid  to  the  State  of  Tennessee  monthly,  at  the  expira-  Surplus 
tion  of  each  and  every  month  during  the  time  of  the  ""'"i8- 
lease,  to  be  credited  to  the  interest  due,  or  to  become  due,  to 
the  state  upon  the  lx)nds  issued  to  the  lessor,  and  which  are  a 
lien  by  statute  upon  said  road.     If  the  surplus  earnings  should, 
during  the  term  of  lease,  pay  off  the  arrears  of  interest  due  the 
state,  and  exceed  the  interest  which  may  thereafter  fall  due 
semiannual!}',  such  excess  shall  be  paid  to  the  lessor  or  its  order. 

It  is  further  agreed  that  no  agent  or  officer  of  either  road 


38  DECREES    AND    ACTS    OF    TENNESSEE    RELATING    TO 

shall  be  allowed  to  engage  in  any  speculation  or  business  con- 
nected, or  have  anything  to  do,  with  the  transportation  or  other 
business  of  the  road. 

[SIGNED.]  E.  W.  COLE, 

Pres.  of  the  N.  &  C.  R.  R.  Co. 

AND,  WHEREAS,  The  board  of  directors  of  said  Nashville  & 
Northwestern  Railroad  Company,  at  their  meeting  aforesaid, 
Preamble.  having  duly  considered  said  proposition,  recommend 
its  acceptance  to  the  stockholders  of  said  company;  and, 

WHEREAS,  At  a  meeting  of  said  stockholders,  duly  and  legally 
called  and  held  at  the  city  of  Nashville,  on  the  twenty-eighth 
day  of  October,  1869,  a  majority  of  them  voted  in  favor  of 
accepting  the.  proposition  for  said  lease  as  above  set  forth;  and, 

WHEREAS,  Said  Nashville  &  Northwestern  Road  is  at  present 
in  the  hands  of  the  state  authorities,  whereby  the  assent  of  the 
Same.  State  of  Tennessee  is  made  necessary  to  the  consum- 

mation of  said  contract  and  to  the  validity  of  said  lease;  and, 

WHEREAS,  In  the  opinion  of  this  general  assembly,  it  is 
manifestly  to  the  interest  of  the  state  as  well  as  of  said  railroad 
companies  and  the  public  that  said  proposition  should  be  ac- 
cepted and  said  lease  approved,  ratified,  and  made  obligatory 
on  all  the  parties  thereto;  therefore, 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the 
State  of  Tennessee,  That  the  above  proposition  be,  and  the  same 
Proposition  *s  nereby,  accepted,  and  said  Nashville  &  Chatta- 
accepted.  nooga  Railroad  Company  is  hereby  authorized  to 
take  possession  of  and  control  of  said  Nashville  &  Northwestern 
Railroad,  and  the  property  thereof,  according  to  the  terms  and 
conditions  of  the  proposition  hereinafter  set  forth;  Provided, 
That  the  present  president  and  directors  of  the  Nashville  & 
Chattanooga  Railroad  Company,  and  their  successors  in  office, 
before  entering  upon  the  discharge  of  their  duties  under  the 
foregoing  lease,  and  before  taking  possession  of  said  North- 
western Railroad,  shall  first  enter  into  bond,  with  two 
or  more  sufficient  securities,  in  the  penal  sum  of  one 
hundred  thousand  dollars,  payable  to  the  State  of  Tennessee, 
for  the  faithful  performance  of  the  terms  and  stipulations  of 


NASHVILLE,    CHATTANOOGA    <fc    ST.    LOUIS    RAILWAY.  '•'.» 

said  lease  in  each  and  every  particular,  and  for  a  prompt  and 
faithful  compliance  with  the  terms,  provisions,  and  restrictions 
hereinafter  provided  by  law,  which  bond  shall  IMJ  approved  by 
the  governor,  comptroller,  and  treasurer  of  the  state,  and  Hied 
in  the  office  of  the  comptroller. 

SEC.  2.   That  the  agent  provided  for  in  said  lease  shall  be 
chosen  by  the  board  of  directors  of  said  Nashville  &  A     t  how 
Northwestern  Railroad  Company,  with  the  concur-  ch°s*B'etc- 
rence  of  the  governor  of  the  state,  whose  duty  it  shall  be  to  re- 
port to  the  governor  as  often  as  he  is  required  by  said  lease  to 
report  to  the  Nashville  &   Northwestern  Railroad  Company, 
and  he  shall  be  regarded  as  joint  agent  for  said  company  and 
the  state,  and  his  salary,  which  shall  be  one  hundred  and  fifty 
dollars  per  month,  shall  be  paid  out  of  the  earnings  of  said 
Nashville  &  Northwestern  Railroad. 

SEC.  3.  That  nothing  herein  contained  shall  be  so  construed 
as  to  take  the  Nashville  &  Northwestern  Railroad  Notrelease(j 
out  of  the  provisions  of  any  law  or  laws  that  may  )>e  from  Uws- 
passed  by  the  general  assembly  of  the  state;  but  the  said  North- 
western Railroad  shall  be  subject  to  the  provisions  of  such  law 
or  laws  which  may  be  passed  as  aforesaid,  as  though  this  act 
had  never  been  passed. 

SEC.  4.  That  the  foregoing  lease  is  ratified,  subject  to  the 
provisions  of  this  act,  with  the  express  reservation 
to  the  state  of  the  right  to  terminate  the  same  at  any 
time  without  notice,  by  the  act  of  the  general  assembly  of  the 
state;  Provided,  That  should   the  state,  or  a  purchaser  from 
the  state  of  said  Nashville  &  Northwestern  Railroad,  demand 
possession  of  said  road  before  the   Nashville  &  Chattanooga 
Road  has  been  reimbursed  of  all  necessary  and  proper  exj>endi- 
tures  in  operating  said  Northwestern  Railroad  from 
the  earnings  of  said  road,  such  excess  of  exj>enditures 
over  earnings  shall  be  paid  by  the  state  or  said  purchaser  to 
the  Nashville  &  Chattanooga  Railroad  Company. 

SEC.  5.   That  this  act  shall  take  effect  from  and  after  its  pas- 
sage.    (Acts  1869-70,  ch.  21;  passed  December  9,  1869.) 


40  DECREES    AND    ACTS    OF    TENNESSEE    RELATING    TO 

6.  Alabama  &  Chattanooga  Railroad  Company  allowed  to 

cross  tracks  of  Nashville  &  Chattanooga  Railroad  Com- 
pany near  Lookout  Mountain,  provided  it  keeps  in  repair 
switches,  fixtures,  etc.,  at  crossings. 

SEC.  II.  Be  it  further  enacted,  That  D.  N.  Stanton,  pres- 
Ma  survey  ident,  an^  J-  T.  Burn,  J.  C.  Stanton,  Lewis  Rice, 
route,  etc.  John  Dermit,  J.  P.  Roberson,  Seth  Adams,  S.  A. 
Carlton,  Wm.  Claflin,  Robert  T.  Paine,  Jr.,  W.  P.  Rathburn, 
and  R.  M.  Patton,  directors  of  said  railroad  company,  or  their 
successors  in  office,  or  a  majority  of  them,  or  their  chief  en- 
gineer, whose  action  shall  be  approved  by  the  president  and  a 
majority  of  the  then  directors  of  said  company,  are  hereby 
authorized  and  empowered  to  survey,  lay  off,  locate,  extend, 
build,  and  construct  their  said  railroad,  commencing  at  or  near 
Wauhatchie  station,  on  the  Nashville  &  Chattanooga  Railroad, 
in  Hamilton  county,  Tennessee,  by  the  nearest  practicable  route 
to  such  point  within  the  corporate  limits  of  the  city  of  Chat- 
tanooga, Tenn.,  as  they  may  deem  most  advantageous  for 
making  connections  with  other  roads  now  in  operation,  or  that 
may  hereafter  terminate  at  that  point;  and  for  this  purpose 
may  locate  their  said  road  so  as  to  cross  the  track  of  the  Nash- 
ville &  Chattanooga  Railroad  Company  west  of  Lookout  Moun- 
tain, and  recross  the  track  of  said  Nashville  &  Chattanooga 
Railroad  east  of  said  Lookout  Mountain;  Provided, 
however,  That  the  Alabama  &  Chattanooga  Railroad 
Company  shall,  at  its  own  expense,  build,  erect,  and  keep  in 
repair  all  necessary  switches  and  fixtures  at  said  crossings,  and 
shall  not  unnecessarily  hinder  or  delay  the  passage  of  trains 
upon  said  Nashville  &  Chattanooga  Railroad.  (Acts  Tenn., 
1869-70,  ch.  53,  sec.  2.) 

The  Alabama  Great  Southern  Railroad  was  organized  November  30, 
1877,  and  acquired  the  property  of  the  Alabama  &  Chattanooga  Railroad, 
sold  under  foreclosure  January  22,  1877. 

7.  Nashville,  Murfreesboro,  Shelbyville,  and  Winchester  au- 

thorized to  raise  money  or  issue  bonds  to  pay  for  stock 
in  Nashville  &  Chattanooga  Railroad  Company. 

WHEREAS,  The  town  of  Nashville,  by  its  board  of  mayor  and 
aldermen,  has  authorized  the  mayor  of  said  town  to  subscribe 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.  41 

for  20,000  shares  of  the  capital  stock  of  the  Nashville  &  Chat- 
tanooga Railroad,  which  subscription  has  not,  however,  yet  in 
fact  been  made;  and, 

WHEREAS,   It  is  necessary  that  further  power  should  be  ex- 
tended to  the  corjxn'ate  authorities  of  said  town,  to  Pretmbie. 
enable  them  to  pay  the  calls  upon  said  stock;  therefore, 

SECTION  1.   Be  it  enacted  by  the  General  Assembly  of  the 
State  of  Tennwwe,  That  the  town  of  Nashville  IK?,  and  is  hereby, 
authorized,  through  its  mayor  and  aldermen,  and  by  the  sub- 
scription of  its  mayor  on  the  books  of  the  Nashville  Nashville 
&  Chattanooga  Railroad  Company,  to  subscril>e  for  ™ocksubscrlt 
twenty  thousand  shares  of  the  capital  stock  of  said  company. 

SEC.  2.   Be  it  enacted,   That  the  mayor  and  aldermen   of 
Nashville  be,  and  are  hereby,  authorized  to  raise  money  on  loan, 
by  pledging  the  faith  of  the  corporation,  by  pledg-  M     borrow 
ing  a  portion  of  its  taxes,  by  mortgage,  or  other-  raoncy- 
wise,  as  to  them  may  soem  best,  to  an  amount  not  exceeding 
what  may  be  demanded  for  the  calls  upon  the  stock  aforesaid, 
and  said  loan  may  be  created  for  such  length  of  time,  and  pay- 
able in  such  manner,  as  to  the  said  mayor  and  aldermen  may 
be  deemed  best. 

SEC.  3.   Be  it  enacted,  That  the  said  mayor  and  aldermen  be, 
and  they  are  hereby,  authorized,  if  to  them  it  shall  seem  best, 
instead  of  making  a  loan  as  aforesaid  for  the  whole  M     is$ue 
amount  of  said  calls,  or  any  part  thereof,  to  issue  bon<ls- 
the  bonds  of  the  said  corporation,  under  its  corporate  seal,  to 
be  signed  by  its  mayor  and  countersigned  by  its  recorder,  for 
the  whole  or  any  part  of  said  calls  which  may  be  made  from 
time  to  time  by  said  railroad  company  on  said  stock. 

SEC.  4.   Be  it  enacted,  That  the  bonds  so  to  l>e  issued  shall 
be  in  sums  not  less  than  five  hundred  dollars  each;  D^^I,,,, 
that  they  shall  not  bear  a  greater  rate  of  interest  of  bonds- 
than  six  per  centum  per  annum,  and  shall  not  be  jwyable  at  a 
greater  distance  of  time  from  their  respective  dates  than  thirty 
years. 

SEC.  5.   Be  it  enacted,  That  a  like  privilege  of  subscription, 
and  a  like  power  to  issue  bonds  and  to  raise  money  on  loan,  be 


42  DECREES    AND    ACTS    OF    TENNESSEE    RELATING    TO 

Murfreesboro.  extended  to  the  following  incorporated  towns,  to  wit: 
Winchester.  Murfreesboro,  Shelby ville,  and  Winchester;  Pro- 
vided, That  the  mayor  and  aldermen  of  the  towns  of  Murfrees- 
boro, Shelbyville,  and  Winchester  may  issue  bonds  for  their 
stock,  or,  in  negotiating  loans  under  this  act,  of  a  denomination 
as  low  as  one  hundred  dollars.  (Acts  Tenn.,  1847-8,  ch. 
26;  passed  December  9,  1847.) 

Shelbyville  subscription. — The  town  of  Shelbyville  never  subscribed 
for  a  share  of  stock  in  this  company.  It  is  true  that,  on  December  8, 
1848,  the  board  of  mayor  and  aldermen  did  make  a  subscription  for  the 
town  of  §50.000  of  the  stock,  but,  on  December  30,  1848,  this  ordinance 
was  repealed,  and  nothing-  more  was  ever  done.  Nor  did  the  town  sub- 
scribe in  building  the  branch  to  Shelbyville. 

Nashville  subscription. — The  proposition  to  subscribe  or  not  was 
submitted  to  the  people  of  Nashville,  July  3,  1847,  and  resulted  in  a  vote 
of  three  to  one  in  favor  of  subscribing-  $500.000,  upon  condition  that  the 
calls  be  paid  in  the  bonds  of  the  city  not  having  longer  time  to  run  than 
thirty  years.  This  was  done.  See  city  ordinances  passed  July  9,  1847, 
and  December  23,  1847. 

Murfreesboro  subscription. — The  city  of  Murfreesboro  subscribed 
for  $30,000  of  the  stock. 

Winchester  subscription. — The  town  of  Winchester  never  subscribed. 

8.  Charter,  sec.  33,  construed  by  act;  authority  also  given  in 
this  instance  to  borrow  money  and  mortgage  road. 

WHEREAS,  The  charter  of  the  Nashville  &  Chattanooga  Rail- 
road Company,  passed  on  December  11,  1845,  by  its  thirty- 
Additional  third  section  provides  that  the  said  company  shall 
powers.  possess  such  additional  powers  as  may  be  convenient 
for  the  due  and  successful  execution  of  the  powers  granted  in 
said  charter;  and, 

WHEREAS,  The  power  to  borrow  money  upon  such  terms  as 
Borrow  may  ^e  Preseribed  by  the  stockholders  at  a  general 
money.  meeting,  to  be  expended  for  the  more  thoroughly 

equipping  said  road,  repairing  the  roadbed,  and  for  such  other 
purposes  as  may  be  deemed  expedient  by  said  stockholders,  in- 
cluded in  the  powers  granted  by  said  thirty-third  section;  and, 

WHEREAS,  It  is  intended  by  the  following  act  merely  to  con- 
Construction  strue  the  powers  as  granted  by  said  charter,  and 
of  power.  noj.  ^0  en]arge  or  modify  the  same;  therefore, 

SECTION  1.  J3e  it  enacted  by  the  General  Assembly  of  the 
State  of  Tennessee,  That  the  Nashville  &  Chattanooga  Railroad 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.  43 

Company  l>e,  and  it  is  hereby,  jxjrmitte<l  to  lx>rrow  Permitted  to 
a  sum  not  exceeding  three  millions  of  dollars,  and  $3.000.000. 
in  order  to  secure  the  payment  of  the  same,  the  said  company 
is  authorized  to  make  and  issue  its  lx>nds  in  sums  of  one  thou- 
sand dollars  each  for  the  sum  aforesaid,  payable  in  not  less  than 
five  nor  more  than  twenty  years  from  date,  in  gold  or  silver 
coin,  with  coupons  attached  for  the  payment  of  interest  semi- 
annually,  at  a  rate  of  interest  to  be  agreed  ii|x>n,   Rgte  of 
not  exceeding  the  legal  rate  of  interest  at  the  place  tnterest- 
where  payable. 

SEC.  2.   That  in  order  more  perfectly  to  secure  the  payment 
of  the  principal  and  interest  of  the  bonds  to  be 
issued  as  aforesaid,    the  said  company  is  hereby 
permitted  to  execute  a  second  mortgage  on  its  charter,  road, 
works,  rolling  stock,  and  depots,  with  all  the  stip- 

Mortg.ge. 

ulations  and  conditions  necessary  to  accomplish  the 
intent  and  meaning  of  this  act,  and  the  manner  in  which  said 
bonds  and  mortgage  shall  be  made  and  executed  shall   1x3  pre- 
scribed by  the  board  of  directors  of  said  company;  that  noth- 
ing herein  contained  shall   be  construed  as  to  interfere  with 
prior  liens,  especially  the  lien  of  the  state;  and  that 
this  act  shall  take  effect  from  and  after  its  passage, 
the  public  welfare  requiring  it.     (Acts  Tenn.,   1870,  ch.    14; 
approved  June  13,  1870.) 

It  is  not  the  province  of  the  legislature  to  expound  the  meaning-  of 
previously  existing  laws.  They  can  say  what  the  law  shall  l>e,  but  are 
not  authorized  to  say  what  it  is.  2  Hum.  (Tenn.),  304:  1  Itax.  (Tenn.),  319. 

The  above  act  does  not  make  the  rig-ht  to  mortgage  a  part  of  the  char- 
ter of  the  company,  but  was  enacted  for  this  occasion  only. 

9.  State  aid  to  Nashville  &  Chattanooga  Railroad  Company. 

Many  acts  of  the  legislature  of  the  State  of  Tennessee  were 
passed  authorizing  state  aid  to  be  granted  to  the  Nashville  & 
Chattanooga  Railroad  Company  for  the  purpose  of  building 
and  equipping  its  road.  The  state  aid  was  given  by  having  the 
governor  to  indorse  the  bonds  of  the  road  on  lx?half  of  the 
state.  These  acts  are  quite  lengthy,  and  are  so  seldom  required 
that  for  the  purpose  of  economy  it  is  deemed  not  advisable  to 
insert  them  in  full  in  this  compilation,  but  simply  to  refer  to 


44      DECREES  AND  ACTS  OF  TENNESSEE  RELATING  TO 

the  act  and  page  where  they  can  be  found,  if  desired.  Below 
will  be  found  all  acts  relating  to  this  subject,  set  out  in  the 
order  of  their  passage: 

Acts  1847-8,  ch.  169,  p.  272,  governor  authorized  to  indorse 
and  guarantee  bonds  of  the  Nashville  &  Chattanooga  Railroad 
Company  to  any  amount  not  exceeding  the  sum  of  $500,000. 
For  terms  and  conditions,  see  act. 

Acts  1851-2,  ch.  151,  sec.  18,  bonds  authorized  to  be  issued 
to,  when  twenty-five  miles  of  road  completed  in  addition  to 
eighty  miles  specified  in  Acts  1847-8,  ch.  169,  sec.  2,  to  the 
amount  of  $175,000,  and  so  on  for  each  section  of  twenty-five 
miles.  For  conditions,  see  act  itself. 

Acts  1853-4,  ch.  131,  sec.  6,  governor  authorized  to  indorse 
and  guarantee  bonds  of  Nashville  &  Chattanooga  Railroad 
Company  to  amount  not  exceeding  $650,000.  For  conditions, 
see  act. 

Acts  1855-6,  ch.  120,  governor  authorized  to  indorse  and 
guarantee  $150,000  of  the  bonds  of  the  Nashville  &  Chatta- 
nooga Railroad  Company. 

Acts  1855-6,  ch.  120,  governor  authorized  to  indorse 
and  guarantee  bonds  to  the  amount  of  $150,000  to  the  Nash- 
ville &  Chattanooga  Railroad  Company  to  complete  branch  to 
the  East  Tennessee  &  Georgia  Railroad. 

Acts  1855-6,  ch.  35,  governor  authorized  to  indorse 
and  guarantee  bonds  of  the  Nashville  &  Chattanooga  Railroad 
Company  to  the  amount  of  $95,000.  For  terms  and  conditions, 
see  act. 

Acts  1859-60,  ch.  7,  state  aid  to  the  extent  of  a  sum 
not  exceeding  $150,000  transferred  from  the  Memphis  & 
Charleston  Railroad  Company  to  the  Nashville  &  Chattanooga 
Railroad  Company,  to  be  applied  exclusively  to  that  part  of  the 
road,  etc.,  between  Stevenson  and  Chattanooga.  For  con- 
ditions, see  act  itself. 

Acts  1865-6,  ch.  14,  p.  23,  governor  authorized  to  issue 
bonds  to  the  amount  of  $125,000  to  the  Nashville  &  Chat- 
tanooga Railroad  Company  for  the  completion  of  the  branch 
road  from  Bridgeport,  Ala.,  to  Jasper,  Tenn. 


N  \>ll\  II.I.E.    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  45 

10.  Internal  improvement  acts. 

The  legislature  of  the  State  of  Tennessee  has  passed  many 
acts  under  the  terms  of  which  the  various  railways  in  the  state 
could  secure  state  aid  for  the  purpose  of  building  ami  equipping 
their  roads.  These  acts  are  very  numerous  and  lengthy,  and 
it  is  a  rare  exception  when  they  are  now  needed.  For  these 
ira>ons  it  is  deemed  advisable  not  to  insert  them  in  full  in  this 
compilation,  but  simply  to  give  the  acts  and  pages  where  they 
can  l>e  found  should  occasion  ever  require. 

Immediately  following  will  be  found  all  the  acts  in  relation 
thereto,  set  out  in  the  order  of  their  passage:  Acts  1851-2, 
ch.  151,  passed  February  11,  1852;  Acts  1851-2,  ch.  285, 
passed  February  28,  1853;  Acts  1853-4,  ch.  131,  passed  Feb- 
ruary 8,  1854;  Acts  1853-4,  ch.  132,  passed  December  16, 
1853;  Acts  1853-4,  ch.  225,  passed  February  17,  1854;  Acts 
1855-6,  ch.  82,  p.  92,  passed  January  19,  1856;  Acts  1855-6, 
ch.  228,  passed  January  30,  1856;  Acts  1857-8,  ch.  20,  passed 
January  9,  1858;  Acts  1859-60,  ch.  74;  Acts  1865-6,  ch.  14, 
p.  33,  passed  January  18,  1866;  Acts  1865-6,  ch.  31,  passed 
February  27,  1866;  Acts  1865-6,  ch.  9,  passed  February  23, 
1865;  Acts  1865-6,  ch.  24,  passed  January  18,  1866;  Acts 
1865-6,  ch.  95,  passed  January  26,  1866;  Acts  1866-7,  ch.  2, 
passed  November  19,  1866;  Acts  1866-7,  ch.  22,  passed  Feb- 
ruary, 18,  1867;  Acts  1868-9,  ch.  19,  passed  January  26,  1869. 

RESOLUTIONS  OF  TENNESSEE  RELATING  TO 

NASHVILLE  &  CHATTANOOGA 

RAILROAD  COMPANY. 

1.  Resolution  of  Tennessee  asking  Georgia  for  right  of  way 
for  Nashville  &  Chattanooga  Railroad  Company. 

WHEREAS,  The  general  assembly  of  the  State  of  Tennessee 
has  passed  an  act  incorporating  a  company  to  construct  a  rail- 
road from  Nashville  to  Chattanooga,  designed  to  connect  at  the 
latter  place  with  the  great  line  of  railroad  extending  to  the 
Southern  Atlantic  coast;  and, 

WHEREAS,  From  partial  reconnoissances  and  surveys  which 
have  been  made,  the  route  l>elieved  to  IK?  the  most  favorable  for 
the  road  crosses  the  southern  boundary  line  of  the  state,  and 


46  RESOLUTIONS    OF    TENNESSEE    RELATING    TO 

for  some  distance  passes  through  the  territory  of  the  State  of 
Georgia;  and, 

WHEREAS,  The  construction  of  the  Nashville  &  Chattanooga 
Railroad  in  a  great  degree  depends  upon  the  early  completion 
by  Georgia  of  her  state  road  to  the  Tennessee  River,  which 
would  bring  that  work  within  the  territory  and  jurisdiction  of 
Tennessee,  the  right  and  privilege  of  doing  which  has  been 
granted  to  Georgia  by  this  state;  and, 

WHEREAS,  The  accomplishment  of  both  of  these  great  works 
of  internal  improvement,  believed  to  be  alike  beneficial  to  both 
states,  may,  in  a  great  degree,  depend  upon  the  reciprocal  legis- 
lation of  the  two  states,  by  which  the  rights  and  privileges  to 
be  enjoyed  and  exercised  by  each  within  the  jurisdiction  of  the 
other  may  be  placed  upon  a  just  and  permanent  basis;  therefore, 

Resolved  by  the  General  Assembly  of  the  State  of  Tennessee, 
That  the  legislature  of  the  State  of  Georgia  be  requested  to 
grant  to  the  Nashville  &  Chattanooga  Railroad  Company  the 
privilege  of  surveying,  locating,  and  constructing  their  road, 
and  of  establishing  any  necessary  warehouses,  depots,  etc., 
thereon,  from  a  point  on  the  state  line  in  Dade  county,  near  the 
head  of  Running  Water  Creek,  thence  through  the  sai  I  county 
of  Dade,  by  John  B.  Perkins,  and  down  Lookout  Valley, 
recrossing  the  state  line  in  said  valley,  with  such  protection  to 
the  rights  and  property  of  the  company,  and  under  such  re- 
strictions, as  that  legislature  may  deem  expedient  to  prescribe. 

Resolved,  That  James  A.  Whiteside  be  appointed  an  agent 
to  proceed  to  the  Georgia  legislature,  now  in  session,  to  solicit 
the  right  of  way  hereinbefore  indicated  for  the  Nashville  & 
Chattanooga  Railroad,  and  confer  with  the  authorities  of  that 
state  upon  the  subject  of  the  reciprocal  legislation  which  should 
be  adopted  by  the  two  states  to  make  effectual  the  rights  and 
privileges  conferred  by  them  respectively.  (Acts  Tenn., 
1847-8,  Resolution  No.  2;  passed  November  29,  1847.) 

2.  Resolutions  of  Tennessee  asking  Alabama  for  the  right  of 
way  for  the  Nashville  &  Chattanooga  Railroad. 

WHEREAS,  The  general  assembly  of  the  State  of  Tennessee 
has  passed  an  act  incorporating  a  company  to  construct  a  rail- 


NASH VI 1. 1, K,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.  47 

road  from  Nashville,  in  Davidson  county,  to  Chattanooga,  in 
Hamilton  county;  and, 

WHEREAS,  From  partial  examination  and  reconnoissanees 
which  have  been  made,  several  different  routes  are  presented,  sup- 
posed to  afford  facilities  for  the  location  of  the  road,  one  of  which 
crosses  the  state  line  and  for  a  short  distance  passes  through 
the  territory  of  the  State  of  Alabama,  and  it  l>eing  desirable  to 
locate  and  establish  the  road  upon  the  route  most  suitable  for 
its  construction,  which  can  only  be  ascertained  by  actual  survey 
and  estimates;  therefore, 

Resolved  by  the  General  Assembly  of  tie  State  of  Tennexxee, 
That  the  legislature  of  the  State  of  Alabama  be  requested  to 
grant  to  the  Nashville  &  Chattanooga  Railroad  Company  the 
privilege  of  surveying,  and  in  case  they  find  that  route  most 
eligible,  for  locating  and  building  their  road  and  any  necessary 
warehouses,  depots,  water  stations,  etc.,  from  a  point  on  the 
state  line,  in  Jackson  county,  at  or  near  the  place  where  Crow 
Creek  crosses  the  same,  thence  down  the  valley  of  said  creek 
towards  liolivar,  so  far  as  to  be  able  to  turn  the  spur  of  Cum- 
berland mountain,  and  recross  the  state  line  between  said 
mountain  and  Tennessee  river,  with  such  protection  to  the 
rights  conferred  and  such  restrictions  as  that  legislature  may 
deem  expedient  to  impose. 

Rsfolwdj  That  the  governor  of  this  state  be  requested  to 
transmit  a  copy  of  the  foregoing  preamble  and  resolutions  to  the 
executive  of  the  State  of  Alabama,  with  the  request  that  he 
will  submit  the  same  to  the  legislature  of  that  state  for  consid- 
eration. (Acts  Tenn.,  1845-6,  Resolution  No.  5;  adopted 
December  12,  1846.) 

3.  Resolution  allowing  petition  of  W.  C.  Harding,  D.  H.  Mc- 
Gavock,  and  Lucy  McKelvey  to  be  filed,  asserting  their 
rights  for  damages  for  land  taken  for  right  of  way  on 
Northwestern  Division. 

WHEREAS,  W.  G.  Harding,  D.  H.  McCiavock,  Mrs.  Mc- 
Kelvey, and  others  have  obtained  decree  in  the  supreme  court 
of  Tennessee,  enjoining  Nashville,  Chattanooga  &  St.  Ixwis 
Railroad  from  using  or  running  trains  over  certain  lands,  occu- 


48  RESOLUTIONS    OF    TENNESSEE    RELATING    TO 

pied  by  the  right  of  way  of  the  Nashville  &  Northwestern 
Railroad,  sold  by  the  state  in  the  case  of  the  State  v.  The  Edge- 
field  &  Kentucky  Railroad  Company,  pending  in  the  chancery 
court  at  Nashville,  to  said  Nashville,  Chattanooga  &  St.  Louis 
Railway;  and, 

WHEREAS,  The  basis  of  these  decrees  for  injunction  was  that 
the  lien  of  said  parties  for  the  purchase  money  of  these  lands 
was  prior  and  superior  to  that  of  the  state,  in  said  land  of  said 
railroad  companies,  and  that  they  not  having  been  made  parties 
to  said  suit,  had  no  opportunity  therein  to  have  adjudicated 
their  right  therein  to  the  purchase  money  paid  into  court  for 
said  Nashville  &  Northwestern  Railroad,  and,  not  being  per- 
mitted to  sue  the  state,  were  forced  to  pursue  their  remedy  by 
injunction  against  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way, as  purchasers  of  said  railroad;  and, 

WHEREAS,  It  being  the  intention  of  the  legislature,  in  pass- 
ing the  various  acts  directing  the  bringing  of  said  suit  for  the 
purpose  of  selling  of  said  railroad  and  other  delinquent  rail- 
roads, that  all  parties  having  legal  claims  against  any  of  the 
said  railroads  should  be  made  parties  thereto,  and  have  their 
rights  therein  adjudicated;  nowr,  therefore, 

lie  it  resolved  by  the  General  Assembly  of  the  State  of  Ten- 
nessee, That  the  said  W.  G.  Harding,  D.  H.  McGavock  &  Co., 
complainants,  and  Lucy  McElvey,  or  their  assigns,  may  pro- 
ceed, by  petition,  in  said  cause  of  the  State  of  Tennessee  v.  The 
Edgefidd  &  Kentucky  Railroad  Co.  et  aL,  to  make  themselves 
parties  thereto,  making  the  state  a  party  to  said  petition  by 
service  of  notice  upon  the  attorney -general  for  the  state  —  days 
before  the  tiling  of  the  same;  and  the  said  chancery  court  shall 
have  full  power  to  make  such  decree  thereon  as  it  might  have 
made  had  the  petitioners  been  parties  to  the  original  bill  therein, 
and  the  fact  of  not  having  been  made  parties  originally  to  said 
suit  shall  in  no  way  affect  their  rights  in  the  premises,  pro- 
vided nothing  in  this  resolution  shall  in  any  way  affect  the 
judgments  of  the  parties  against  the  Nashville,  Chattanooga  & 
St.  Louis  Railroad,  which  have  been  rendered  in  the  courts 
heretofore.  (Senate  Joint  Resolution,  No.  20,  Acts  Tenn., 
1877,  p.  229;  approved  March  26.) 


NASHVILLE,    CHATTANOOGA    A    8T.     LOUIS    RAILWAY.  49 

4.  Resolution  authorizing  suit  against  Nashville  &  Chatta- 

nooga Railroad  Company  for  state's  interest  as  stock- 
holder in  Nashville,  Murfreesboro  &  Shelbyville  Turnpike 
Company. 

WHEREAS,  On  July  19,  1848,  the  Nashville  &  Chattanooga 
Railroad  Company,  compounded,  under  a  directory  clause  in  its 
charter,  with  the  stockholders  of  the  Nashville,  Murfreesl>oro 
&  Shelbyville  Turnpike  Company,  for  damages  to  its  franchise 
by  interfering  parallel  lines,  agreeing  to  pay  as  such  damage 
twenty- five  per  cent.,  in  amount  of  its  capital  stock,  on  the 
capital  stock  in  said  turnpike  road,  the  state's  interest  as  a 
stockholder  being  $66,660.66;  and, 

WHEREAS,  This  twenty-five  per  cent,  was  promptly  paid  to 
the  individual  stockholders,  but  has  never  been  paid  to  the  state 
by  said  Nashville  &  Chattanooga  Railroad  Company;  therefore, 

Be  it  resolved  by  the  General  Axuembly  of  the  State  of  Ten- 
nessee. That  the  secretary  of  state  is  hereby  ordered  and  in- 
structed to  proceed  at  once,  and  use  all  lawful  measures  for  the 
collection  of  the  same,  and  the  dividends  properly  lielonging 
thereto.  (House  Joint  Resolution  No.  60,  approved  March  12, 
1875;  Acts  Tenn.,  1875,  p.  317.) 

5.  Resolution  with  reference  to  Nashville,  Chattanooga  &  St. 

Louis  Railway  claiming  exemption  from  taxation  on 
Northwestern  Division. 

WHEREAS,  The  comptroller  states  in  his  report  to  the  pres- 
ent general  assembly,  pages  56  and  57,  that  the  Knoxville  & 
Ohio  Railroad,  the  Mobile  &  Ohio  Railroad,  the  Nashville, 
Chattanooga  &  St.  Louis  Railroad  (Northwestern  Division)  are 
exempt  from  taxation;  and, 

WHEREAS,  The  said  roads  have  a  grand  total  of  three  hun- 
dred and  forty-rive  miles  of  railroad,  and  that  the  assessed  value 
of  said  roads  amounts  to  rive  million  sixty-seven  thousand  three 
hundred  and  ninety-rive  dollars;  and, 

WHEREAS,  The  state  is  in  need  of  all  the  revenue  she  can 
get;  therefore, 

Be  it  resolved  hy  the  home  of  representative*^  That  the  rail- 
road committee  shall  inquire  whether  said  companies  are  ex- 

4 


50        CHANCERY  COURT  AMENDMENT  TO  CHARTER 

empt  from  taxation,  and,  if  so,  when  said  exemption  expires, 
and  make  their  report  to  this  house.  (House  Resolution  No.  32, 
Acts  Tenn.,  1887.) 

CHANCERY  COURT  AMENDMENT  TO  CHARTER. 

Decree  amending  charter  of  Nashville  &  Chattanooga  Rail- 
road Company  at  Nashville,  Tenn. 

This  cause  came  on  to  be  heard  this  thirteenth  day  of  May, 
1872,  before  the  Hon.  E.  H.  East,  chancellor,  presiding  in  the 
chancery  court  for  the  county  of  Davidson,  State  of  Tennessee, 
upon  the  petition  of  the  Nashville  &  Chattanooga  Railroad 
Company,  incorporated  by  the  general  assembly  of  Tennessee, 
and  of  its  directors,  E.  W.  Cole,  Thomas  C.  Whitesides,  God- 
frey M.  Fogg,  John  W.  Childress,  John  Frizzell,  Jackson 
Pryor,  W.  S.  Huggins,  John  F.  Anderson,  John  B.  Hawkins, 
A.  E.  Patton,  Thomas  Lipscomb,  Edward  L.  Jordan,  V.  K. 
Stevenson,  Ben  May,  John  P.  King,  John  M.  Bass,  Thomas 
H.  Caldwell,  and  W.  Bosson,  the  last  two  being  the  state  di- 
rectors: 

When  it  appeared  to  the  court  that,  on  March  9,  1872,  the 
petition  in  this  cause  was  filed,  and  which  has  been  enrolled  in 
book  No.  1,  page  283,  and  that,  by  said  petition,  the  court  is 
asked  to  pronounce  a  decree  amending  the  charter  of  said  com- 
pany as  specified  in  said  petition;  that,  on  March  11,  1872,  the 
clerk  and  master  of  this  court  caused  publication  to  be  made 
for  thirty  days  in  the  Republican  Banner,  a  newspaper  pub- 
lished in  the  city  of  Nashville,  Tennessee,  which  publication 
was  in  the  words  and  figures  following: 

No.  7108. 
IN  CHANCERY  AT   NASHVILLE. 

STATE  OF  TENNESSEE, 
OFFICE  CLERK  AND  MASTER  CHANCERY  COURT. 

NASHVILLE,  March  11,  1872. 

WHEREAS,  The  Nashville  &  Chattanooga  Railroad  Company 
and  its  directors,  viz. :  E.  W.  Cole,  Thos.  C.  Whitesides,  G. 
M.  Fogg,  John  W.  Childress,  John  Frizzell,  Jackson  Pryor, 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  51 

W.  S.  Huggins,  John  F.  Anderson,  Jno.  B.  Hawkins,  A.  E. 
Patton,  Thos.  Lipseomb,  Edward  L.  Jordan,  V.  K.  Stevenson, 
Ben  May,  Jno.  P.  King,  Jno.  M.  Bass,  Thos.  H.  Caldwell,  and 
W.  Bosson  (the  last  two  l>eing  state  directors),  tiled  their  peti- 
tion in  the  chancery  court  at  Nashville,  on  the  ninth  of  March, 
1872,  praying  that  the  charter  of  said  Nashville  &  Chattanooga 
Railroad  be  amended  by  said  court;  that  a  decree  be  pro- 
nounced granting  said  amendments,  which  are  as  follows: 

1.  May  lease  or  purchase  other  railways  and  issue  bonds. 

That  the  board  of  directors  of  said  company,  two-thirds  of 
the  whole  number  of  directors  agreeing  thereto,  shall  have  the 
power  and  authority  to  acquire  for  said  company  by  purchase 
or  lease,  the  property  and  franchises  of  any  railroad,  as  well  as 
the  property  and  franchises  of  any  other  railroad  company  op- 
erating or  proposing  to  construct  a  railroad  which  connects  with 
the  Nashville  &  Chattanooga  Railroad,  as  well  as  the  property 
and  franchises  of  any  other  railroad  company,  the  purchase  or 
lease  of  which  may,  in  the  opinion  of  the  board  of  directors, 
promote  the  interest  of  the  Nashville  &  Chattanooga  Railroad 
Company,  and  said  board  of  directors  may  cause  to  be  issued 
the  bond  of  the  said  Nashville  &  Chattanooga  Railroad  Com- 
pany to  the  amount  necessary,  from  time  to  time,  to  accomplish. 

For  validity  of  this  amendment,  as  well  as  those  following1  in  this  de- 
cree, see  discussion  herein  as  to  chancery  court  amendments;  refer  to 
index. 

2.  May  subscribe  to  stock  in  any  incorporated  company  and 

issue  bonds. 

That  the  board  of  directors  of  said  company,  two-thirds  of 
the  whole  number  of  directors  agreeing  thereto,  may,  for  and 
on  behalf  of  said  company,  subscribe  to  the  capital  stock  of  any 
other  incor|>orated  company  to  such  an  amount  as  may  be  agreed 
upon  by  said  board  of  directors,  and  may  cause  to  be  issued  the 
bonds  of  said  company  to  the  amount  necessary,  from  time  to 
time,  to  accomplish  this  purpose. 

3.  May  indorse  or  guarantee  bonds  of  other  companies. 

That  the  board  of  directors  of  said  company,  two-thirds  of 
the  whole  number  of  said  directors  agreeing  thereto,  may,  for 


52        CHANCERY  COURT  AMENDMENT  TO  CHARTER 

and  on  behalf  of  said  company,  and  to  be  indorsed  and  guar- 
anteed, the  bonds  issued  by  the  other  incorporated  companies, 
to  such  an  amount  as  may  be  agreed  upon  by  said  board  of 
directors,  whenever  it  may  be,  in  the  opinion  of  the  board  of 
directors,  to  promote  the  interest  of  said  Nashville  &  Chatta- 
nooga Railroad  Company. 

4.  May  increase  capital,  how. 

That  the  board  of  directors  of  said  railroad  company,  two- 
thirds  of  the  whole  number  agreeing  thereto,  may  increase  the 
capital  stock  of  said  company  to  such  an  amount  as  may  be 
determined  by  said  board  of  directors. 

5.  Manner  of  voting ;  amending  section  20  of  original  charter. 

That  stockholders  may  vote  in  person  or  by  proxy,  and  in 
the  election  of  directors,  and  in  voting  on  all  questions  which 
may  come  before  a  meeting  of  the  stockholders,  if  so  demanded 
by  five  stockholders,  the  vote  shall  be  taken  according  to  the 
following  scale:  The  owner  of  one  or  more  shares,  up  to  and 
including  four,  shall  be  entitled  to  one  vote  for  each  share;  the 
owner  of  a  greater  number  of  shares  than  four  shall  be  entitled 
to  one  vote  for  each  four  shares  over  and  above  four. 

That  the  provisions  of  the  said  act  of  December  11,  1845, 
ch.  1,  inconsistent  with  these  proposed  alterations  and  amend- 
ments be  abrogated. 

It  is  therefore  ordered  that  all  persons  who  desire  to  resist 
the  granting  of  said  amendments  to  said  charter,  as  above  in- 
dicated, or  to  the  prayer  of  said  petition,  do  enter  their  appear- 
ance herein  on  or  before  the  third  Monday  of  the  next  term  of 
said  court,  to  be  held  on  the  first  Monday  in  April  next,  1872, 
and  then  and  there  show  cause,  if  any  they  have,  or  can,  why 
the  prayer  of  said  petition  should  not  be  granted  and  said 
charter  amended,  and  that  a  copy  of  this  order  be  published  for 
thirty  days  in  the  Nashville  Republican  Banner. 

A  copy — attest:  NATHANIEL  BAXTER,  JR., 

Clerk  and  Master. 

FOGG,  WHITESIDES  &  FRIZZELL, 

Solicitors  for  Petitioner. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  53 

It  also  appearing  to  the  court  that  by  »n  act  of  the  general 
assembly  of  the  State  of  Tennessee,  ch.  1,  December  11,  1^45, 
entitled,  "An  act  to  incorporate  the  Nashvilb  &  Chattanooga 
Railroad  Company,"  and  the  acts  amendatory  thereof,  to  wit: 
Ch.  70,  passed  January  21,  1S4H,  entitled,  "An  act  to  amend 
the  charter  of  the  Nashville  <&.  Chattanooga  Railroad  Company," 
and  ch.  266,  passed  January  19,  1850,  entitled,  "An  act  to 
amend  the  charter  of  the  Nashville  &  Chattanooga  Railroad 
Company,"  the  said  Nashville  &  Chattanooga  Railroad  Com- 
pany was  incorporated  for  the  purpose  of  establishing  a  com- 
munication by  railroad  between  Nashville  &  Chattanooga,  in  the 
State  of  Tennessee;  that  by  said  acts  of  assembly  there  were  con- 
ferred upon  said  company  the  powers  and  privileges  incident  and 
necessary  to  the  transaction  of  the  business  for  which  it  was  in- 
corporated; that  under  the  authority  aforesaid  said  company  has 
constructed  and  is  now  operating  a  railroad  from  Nashville  to 
Chattanooga,  its  principal  office  being  at  Nashville;  that  the 
persons  named  as  directors  in  said  petition  constitute  the  presi- 
dent and  directors  of  said  company;  that  in  pursuance  of  the 
provisions  of  sec.  34  of  said  act  of  December  11,  1845,  the  said 
president  and  directors  unanimously  petition  that  the  charter  of 
said  company  may  be  amended  in  the  manner  mentioned  in  the 
petition  filed  in  this  cause.  It  also  appeared  that  no  person 
appeared  to  show  cause  why  the  prayer  of  said  petition  should 
not  be  granted. 

The  court  being  satisfied  that  the  prayer  of  said  petition  is 
legitimate  and  proper,  and  deeming  the  same  necessary  and  not 
inconsistent  with  the  statutory  provisions  on  this  subject,  nor 
the  general  laws  of  the  state,  nor  hurtful  to  the  public  good, 
doth  order,  adjudge,  and  decree,  in  pursuance  of  the  j)owers 
vested  in  courts  of  chancery  by  virtue  of  paragraph  23,  sec.  15, 
of  the  acts  of  the  general  assembly  of  Tennessee,  ch.  54,  ap- 
proved January  30,  1871,  entitled  "An  act  to  authorixe  the 
chancery  courts  in  this  state  to  grant  letters  of  incor|M>ration," 
that  the  acts  of  the  general  assembly  aforesaid  incorporating 
the  Nashville  &  Chattanooga  Railroad  Company,  passed  De- 
cember 11,  1845,  be  altered,  amended,  and  changed  in  the 


54        CHANCERY  COURT  AMENDMENT  TO  CHARTER 

manner  following,  as  prayed  for  in  the  petition  in  this  cause- 
that  is  to  say: 

1.  That  the  board  of  directors  of  said  company,  two-thirds 
of  the  whole  number  of  said  directors  agreeing  •  thereto,  shall 
have  the  power  and  authority  to  acquire  of  said  company,  by 
purchase  or  lease,  the  property  and  franchises  of  any  railroad 
company  operating  or  proposing  to  construct  a  railroad  which 
connects  with  the  Nashville  &  Chattanooga  Railroad,  as  well  as 
the  property  and  franchises  of  any  other  railroad  company,  the 
purchase  or  lease  of  which  may,  in  the  opinion  of  the  board  of 
directors,  promote  the  interest  of  the  Nashville  &  Chattanooga 
Railroad  Company,  and  said  board  of  directors  may  cause  to  be 
issued  the  bonds  of  the  said  Nashville  &  Chattanooga  Railroad 
Company  to  the  amount  necessary,  from  time  to  time,  to  ac- 
complish this  purpose. 

2.  That  the  board  of  directors  of  said  company,  two-thirds 
of  the  whole  number  of  directors  agreeing  thereto,  may,  for 
and  on  behalf  of  said  company,  subscribe  to  the  capital  stock 
of  any  other  incorporated  company,  to  such  an  amount  as  may 
be  agreed  upon  by  said  board  of  directors,  and  may  cause  to 
be  issued  the  bonds  of  said  company  to  the  amount  necessary, 
from  time  to  time,  to  accomplish  this  purpose. 

3.  That  the  board  of  directors  of  said  company,  two-thirds 
of  the  whole  number  of  directors  agreeing  thereto,  may,  for 
and  on  behalf  of  said  company,  cause  to  be  indorsed  and  guar- 
anteed the   bonds   issued   by  other  incorporated  companies  to 
such  an  amount  as  may  be  agreed  upon  by  said  board  of  direct- 
ors whenever  it  may,  in  the  opinion  of  the  board  of  directors, 
promote  the  interest  of  the  Nashville  &  Chattanooga  Railroad 
Company. 

4.  That  the  board  of  directors  of  said  company,  two-thirds 
of  the  whole  number  of  directors  agreeing  thereto,  may  increase 
the  capital  stock  of  said  company  to  such  an  amount  as  may  be 
determined  by  said  board  of  directors. 

5.  The  stockholders  may  vote  in  person  or  by  proxy,  and  in 
the  election  of  directors,  and  in  voting  on  all  questions  which 
mav  come  before  a  meeting  of  the  stockholders,  the  vote  shall 


NASHVILLE,    CHATTANOOGA    &    ST.     LOUIS    RAILWAY.  55 

he  taken  according  to  the  following  scale:  The  owner  of  one 
or  more  shares,  up  to  and  including  four,  shall  l>e  entitled  to 
one  vote  for  each  share;  the  owner  of  a  greater  num tar  of 
shares  than  four  shall  be  entitled  to  one  vote  for  each  four 
shares  over  and  above  four. 

It  is  further  ordered  that  the  Nashville  &  Chattanooga  Rail- 
road Company  pay  the  costs  of  this  proceeding,  for  which  ex- 
ecution may  issue,  and  upon  the  payment  of  the  same  the  clerk 
and  master  will  issue  a  certified  copy  of  this  decree  for  regis- 
tration, i  Entered  in  minute  book  "V,""  pp.  174-178,  at 
Nashville,  Tenn.) 

For  discussion  of  the  validity  of  this  decree,  see  herein.  Refer  to 
index. 

Other  decrees. — There  are  several  other  decrees  in  this  com- 
pilation, but  as  they  simply  vext  title  to  particular  roads  in  this 
company  they  are  inserted  in  the  chapter  relating  to  those  roads 
or  branches. 

ACTS  OF  ALABAMA  RELATING  TO  NASHVILLE 
&  CHATTANOOGA  RAILROAD  COMPANY. 

1.  Alabama  grants  right  of  way  to  Nashville  &  Chattanooga 
Railroad  Company  through  Jackson  county,  with  rights 
and  privileges  of  Tennessee  charter;  how  to  be  taxed. 

SECTION  1.  Be  it  enacted  by  the  Senate  and  ll<m*<-  of  Rep- 
resentatives of  the  State  of  Alabama,  in  General  Axxembly  con- 
vened, That  the  Nashville  &  Chattanooga  Railroad  Company 
be,  and  they  are  hereby,  authorized  to  construct 
their  road  through  the  northern  portion  of  .Jackson 
county,  in  this  state,  and  that  they  shall  have  and  enjoy  all  the 
rights,  privileges,  and  immunities,  and  be  subject  to  such 
restrictions,  as  are  granted  to  and  imposed  upon  said  company 
by  the  act  incorporating  the  same,  as  far  as  said  railroad  lies 
in  the  county  of  Jackson;  on  the  express  condition, 
however,  that  any  railroad  company  now  chartered, 
or  which  may  hereafter  be  chartered  in  this  state,  shall  have 
the  right  to  connect  their  road  directly  with  the  said  Nashville 
&  Chattanooga  Railroad  at  any  jx>int  on  it  in  the  county  of 
Jackson,  aforesaid. 


56  ACTS  OF  ALABAMA  RELATING  TO 

SEC.  2.  [This  section  related  to  the  erection  of  the  bridge 
across  the  Tennessee  River,  and  as  it  is  inserted  in  another  place 
as  a  note  to  Acts  Ala.,  1855-6,  p.  11,  following,  allowing  the 
bridge  to  be  erected,  it  is  here  omitted.] 

SEC.  3.  And  be  it  farther  enacted.  That  nothing  contained 
in  this  act  shall  prevent  the  State  of  Alabama  from  levying  and 
collecting  such  rate  of  tax  on  the  property  of  said  company 
within  this  state,  after  the  completion  of  their  road,  as  shall, 
by  the  general  assembly  at  the  time,  be  assessed  on  the  prop- 
erty of  other  railroad  companies  in  this  state;  Provided,  That, 
in  assessing  any  tax,  the  value  of  that  part  of  the  road  or  other 
property  of  the  company  lying  in  this  state  shall  not  be  esti- 
HOW  as-  mated  at  more  than  the  amount  of  the  capital  stock 

sessed.  of  ^e  COmpany  invested  in  their  purchase  and  con- 

struction, to  be  ascertained  by  the  statement,  on  oath,  of  the 
president  or  engineer  of  the  company,  nor  shall  any  tax  what- 
soever be  levied  on  the  bridge  across  Tennessee  river,  provided 
the  same  is  not  used  for  purposes  of  common  travel,  but  only 
for  the  accommodation  of  the  railroad.  (Acts  Ala.,  18-19-50, 
No.  123;  approved  January  21,  1850.) 

This  act  was  amended  by  Acts  Ala.,  1859-60,  No.  21(5,  so  as  to  allow 
the  company  to  build  a  branch  road  from  a  point  on  its  line  at  or  near 
Bridgeport,  in  Jackson  county,  to  the  Tennessee  state  line,  in  a  direc- 
tion to  Jasper,  with  all  the  rights,  powers,  and  privileges  of  the  main 
line.  See  act  itself  further  on. 

2.  Resolution  of  Alabama  in  regard  to  right  of  way  of  Nash- 
ville &  Chattanooga  Railroad  through  Jackson  county. 

Be  it  enacted  by  the  Senate  and  Home  of  Representatives  of 
the  State  of  Alabama  in  General  Assembly  convened,  That  the 
Chattanooga  Railroad  Company  be,  and  they  are  hereby,  au- 
thorized to  construct  their  road  through  the  northern  portion 
of  Jackson  county,  in  this  state,  subject  to  such  rules,  regula- 
tions, and  restrictions,  in  regard  to  the  interest  and  claim  of 
our  citizens,  as  are  now  imposed  by  law  upon  the  Montgomery 
&  West  Point  Railroad  Company.  (Acts  Ala.,  1845-6;  ap- 
proved February  4,  1846.) 

This  resolution  was  never  acted  upon,  and  the  legislature  of  Alabama 
subsequently  passed  another  and  more  liberal  act.  which  was  accepted, 
and  the  road  built  under  its  provisions.  See  Acts  Ala..  1849-50,  No.  123, 
approved  Jantmry  21.  1850,  herein,  for  provisions. 


NASHVILLE,    CHATTANOOGA    &    ST.     LOUIS    RAILWAY.  57 

3.  Bridge  over  Tennessee  River  allowed  to  be  constructed  by 

Alabama  legislature,  how. 

WHEREAS,  A  considerable  portion  of  the  bridge  authorized 
by  the  act  aforesaid  has  recently  been  destroyed  by  fire;  and, 

WHEREAS,  The  said  railroad  company,  in  erecting  their 
bridge,  constructed  a  drawbridge,  which  remains  in  the  |>ortion 
not  consumed  by  the  recent  burning;  therefore, 

SECTION  1.  Be  it  enacted  by  the  Senate  and  ILnwe  of  Rejtre- 
xi- illative*  of  the  State  of  Alabama  in  General  Assembly  Cfm- 
vened,  That  the  aforesaid  act  be  so  amended  that  the  said 
Nashville  «&  Chattanooga  Railroad  Company  shall  not  be  re- 
quired to  build  any  part  of  their  bridge  thirty  feet,  or  at  any 
other  particular  elevation,  above  extreme  high  water  mark; 
provided,  They  keep  and  maintain  a  good  draw  or  revolving 
bridge  opening  to  a  width  sufficient  to  allow  the  free  passage 
of  steamboats  and  other  water  crafts,  and  so  as,  when  open,  to 
leave  a  clear  space  between  the  piers,  at  the  draw,  of  at  least 
>i.\ty  feet.  (Acts  Alabama,  1855-56,  p.  11;  approved  Jan- 
uary 17,  1856.) 

Previous  to  this  time,  the  legislature  had  passed  an  act  requiring  the 
bridge  to  be  constructed  at  least  thirty  feet  above  extreme  high  water, 
between  the  two  piers  next  to  the  west  bank,  or  any  two  piers  the  com- 
pany might  deem  best;  the  space  between  the  piers  so  selected,  however, 
not  to  be  less  than  one  hundred  and  tifty  feet.  (Acts  Alabama.  1849-50, 
No.  123,  sec.  2;  approved  January  21,  1850.) 

Recently,  however,  the  legislature  of  Alabama  has  passed  another 
act,  again  requiring  the  bridge  to  be  built  at  least  thirty  feet  above  ex- 
treme high  water,  between  the  two  piers  next  to  the  west  bank,  or  anj' 
two  piers  that  the  company  may  deem  best,  and  that  the  space  between 
the  two  piers  so  selected  shall  be  at  least  one  hundred  and  fifty  feet. 
(Acts  Alabama,  1888-89,  p.  443;  approved  February  19.  1889.)  This  act. 
however,  is  inoperative  and  void,  as  against  the  \vxtcd  rights  of  the  com- 
pany. In  addition,  it  is  inoperative,  as  congress,  bj-  acts  1888  and  1890. 
has  taken  charge  of  bridges  over  navigable  streams.  See  discussion  in 
notes  to  sec.  22  of  charter. 

4.  Jasper  branch,  from  Bridgeport  to  state  line,  authorized  to 

be  constructed  in  Alabama  with  rights,  powers,  and  priv- 
ileges of  main  line. 

SECTION  1.  That  the  act  granting  the  right  of  way  to  the 
Nashville  &.  Chattanooga  Railroad  Company  through  Jackson 
county,  and  the  privilege  of  constructing  a  bridge  across  Ten- 
nessee River,  in  said  county  (approved  January  21,  1850),  be 


58  ACTS    OF    ALABAMA    RELATING    TO 

so  amended  that  the  Nashville  &  Chattanooga  Railroad  Com- 
pany shall  have  the  right  to  construct  and  operate  a  branch  of 
their  road  from  a  point  on  the  line  of  their  road  at  or  near 
Bridgeport,  in  Jackson  county,  to  the  Tennessee  state  line,  in 
a  direction  to  Jasper,  Tenn.,  with  all  the  rights,  powers,  and 
privileges  pertaining  to  the  main  line,  and  subject  to  the  same 
liabilities  and  restrictions.  (Acts  Ala. ,  1859-60,  No.  216.) 

5.  Ponds  along  right  of  way  in  Alabama  required  to  be  drained. 

SECTION  1.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  State  of  Alabama,  in  General  Assembly  con- 
vened. That  the  Nashville  &  Chattanooga  Railroad  Company 
are  hereby  required  to  drain  all  the  ponds  on  either  side  of  said 
road,  so  far  as  said  road  is  embraced  in  the  limits  of  the  State 
of  Alabama,  that  have  been,  or  may  hereafter  be,  created  by 
the  construction  of  road. 

SEC.  2.  Be  it  further  enacted,  That  the  said  railroad  com- 
pany are  hereby  allowed  one  year  from  the  approval  of  this  act 
to  comply  with  the  provisions  of  sec.  1. 

SEC.  3.  Be  it  further  enacted,  That  for  every  failure  of  said 
railroad  company  to  remove  or  drain  any  pond  along  the  line 

of  the  same,  it  shall  be  liable  to  a  suit  for  damages 
Damages.  ,       .  , 

at  the  instance  ot  any  person  who  is  or  may  be 

damaged  by  such  failure,  and  that  where  the  damage  claimed  is 
less  than  fifty  dollars  the  suit  may  be  instituted  before  any 
justice  of  the  peace  within  the  beat  where  said  pond  is  or  may 
be  located;  and  that  where  the  damages  claimed  exceed  fifty  dol- 
lars, suit  therefor  may  be  instituted  in  the  circuit  court  where 
the  cause  of  said  damage  has  or  may  originate. 

SEC.  4.    Be  it  farther  enacted,   That  the  rules,  regulations, 
and  law  of  said  justices  and  circuit  court,  as  appli- 
cable to  other  suits,  shall  apply  to  suits  instituted 
under  the  provisions  of  this  act,  unless  they  conflict  with  some 
of    its  provisions.      (Acts   Ala.,    1859-60,    p.    291;    approved 
December  9,  1859.) 


NASHVILLE,    CHATTANOOGA    4    ST.     LOUIS    RAILWAY.  ."•'.« 

6.  Right  of  way  of  Nashville  &  Chattanooga  Railroad  Com- 
pany through  Jackson  county,  Alabama,  again  provided 
for,  as  well  as  Huntsville  &  Elora  Railroad;  how  Nash- 
ville &  Chattanooga  Road  taxed. 

S  FICTION  1.   Re  it  enacted  l>y  the  General  Assembly  of  Ala- 

hiiinii,  Tluit  Jin  act  entitled   "An  act  granting  the  right  of  way 
to  the  Nashville  &  Chattanooga  Railroad  Company  Amendingact 
through  Jackson  county,  and  the  privilege  of  con-  of  * 
structing  a  bridge  across  the  Tennessee  river  in  said  county, 
approved   January   21,    1850,    be,    and    the  same    is  hereby, 
amended  so  as  to  read  as  follows: 

SECTION  1.  That  the  Nashville  &  Chattanooga  Railroad  Com- 
pany be,  and  they  are  hereby,  authorized  to  construct  their 
road  through  the  northern  portion  of  Jackson  county,  in  this 

state,  and  that  they  shall    have  and  enjoy  all  the  other  roads 
.    .  ...  ,    .  ...  may  connect 

rights,  privileges,  and  immunities,  and   be  subject  with. 

to  such  restrictions,  as  are  granted  to  and  imposed  upon  said 
company  by  the  act  incorporating  the  same,  as  far  as  said  rail- 
road lies  in  the  county  of  Jackson,  on  the  express  condition, 
however,  that  any  railroad  company  now  chartered,  or  which 
may  hereafter  be  chartered,  in  this  state,  shall  have  the  right  to 
connect  their  road  directly  with  the  said  Nashville  &  Chattanooga 
Railroad  at  any  point  on  it  in  the  county  of  Jackson  aforesaid. 
SEC.  2.  And  be  it  further  enacted,  That  said  company  shall 
have  the  privilege  of  constructing  a  bridge  for  their  road  across 

the  Tennessee  river;  and,  for  the  purpose  of  avoid-  Bridge  across 

.    ,      f  .       ..i    .^  ,.          •,     i     11  I       the  Tennes- 

ing  any  interference  with  its  navigation,  it  shall  be  see  river. 

the  duty  of  the  company  to  build  the  bridge  at  least  thirty  feet 
above  extreme  high  water,  l>etween  the  two  piers  next  to  the 
west  bank,  or  any  two  piers  that  the  company  may  deem  l>est, 
and  the  space  between  the  two  piers  so  selected  shall  be  at  least 
one  hundred  and  fifty  feet,  so  as  to  afford  free  and  safe  passage 
for  boats  of  all  sixes. 

SEC.  3.    And  h<    It  further  enacted,  That  nothing  contained 
in  this  act  shall  prevent  the  State  of  Alabama  from  levying  and 
collecting  such  rate  of  tax  on  the  projwrty  of  said  Ttxon  prop. 
company  within  this  state,  after  the  completion  of  eftyofroad. 


60  ACTS  OF  ALABAMA  RELATING  TO 

their  road,  as  shall  by  the  general  assembly  at  the  time  be  as- 
sessed on  the  property  of  other  railroad  companies  in  this  state; 
Provided,  That  in  assessing  any  tax  the  value  of  that  part  of 
the  road  or  other  property  of  the  company  lying  in  this  state 
shall  not  be  estimated  at  more  than  the  amount  of  the  capital 
stock  of  the  company  invested  in  their  purchase  and  construc- 
tion, to  be  ascertained  by  the  statement,  on  oath,  of  the  presi- 
dent or  engineers  of  the  company;  nor  shall  any  tax  whatso- 
ever be  levied  on  the  bridge  across  the  Tennessee  River,  pro- 
vided the  same  is  not  used  for  purposes  of  common  travel,  but 
only  for  the  accommodation  of  the  railroad. 

SEC.  4.  WHEREAS,  The  Nashville,  Chattanooga  &  St.  Louis 
Railway,  formerly  the  Nashville  &  Chattanooga  Railroad  Corn- 
Rights  in  Mad-  Pan^r'  nas  constructed  a  road  from  Elora,  in  the 
ison  county.  gtete  of  Tennessee,  to  Huntsville,  in  the  county  of 
Madison,  State  of  Alabama;  therefore, 

Be  it  further  enacted  by  the  General  Assembly  of  Alabama, 
That  said  Nashville,  Chattanooga  &  St.  Louis  Railway  shall 
have  and  enjoy  all  the  rights,  privileges,  and  immunities 
granted  in  sec.  1  of  this  act,  so  far  as  said  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  lies  within  the  county  of  Madison. 
(Acts  Ala.,  1888-9,  p.  443;  approved  February  19,  1889.) 

Sec.  2  of  this  act  is  void  as  against  the  vested  rights  of  the  company. 
In  addition,  it  is  inoperative,  as  congress  now  has  charge  of  navigable 
streams,  under  Acts  1888-1890.  See  sec.  22  of  charter  of  Nashville  & 
Chattanooga  Railroad  Company,  herein. 

7.  Nashville,  Chattanooga  &  St.  Louis  Railway  allowed  to  build 
road  or  branch  through  counties  of  Madison,  Marshall, 
and  Etowah,  to  Attalla  or  Gadsden,  Ala.,  with  rights, 
privileges,  etc.,  of  Tennessee  charter. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  Ala- 
bama, That  the  Nashville,  Chattanooga  &  St.  Louis  Railway, 
a  corporation  chartered  under  the  laws  of  the  State  of  Tennessee, 
be,  and  the  same  is  hereby,  authorized  and  empowered  to  con- 
struct, operate,  and  maintain  its  road,  or  a  branch  thereof,  in 
and  through  the  counties  of  Madison,  Marshall,  and  Etowah, 
in  the  State  of  Alabama,  beginning  at  Huntsville,  in  Madison 
county,  and  extending  thence  through  the  counties  of  Madison, 


NASHVILLE,    CHATTANOOOA    4    ST.    LOUIS    RAILWAY.  61 

Marshall,  and  Etowah,  to  Attalla  or  Gadsden  in  said  Etowah 
county. 

SEC.  2.  Be  it  further  enacted,  That  the  said  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  shall  have  and  enjoy  all  the  rights, 
privileges,  and  immunities  not  in  conflict  with  the  constitution 
of  the  State  of  Alabama,  and  he  subject  to  such  restrictions  as 
are  granted  to  and  imposed  upon  said  Nashville,  Chattanooga 
&  St.  Louis  Railway  by  the  act  or  acts  chartering  the  same,  so 

*  •/ 

far  as  said  railway  lies  in  the  counties  of  Madison,  Marshall, 
and  Etowah,  or  may  hereafter  be  constructed  therein.  (Acts 
Ala.,  1890-91,  p.  154;  approved  December  10,  1890.) 

ACTS   OF   GEORGIA  RELATING   TO   THE  NASH- 
VILLE &  CHATTANOOGA  RAILROAD 
COMPANY. 

1.  Georgia  grants  right  of  way  to  Nashville  &  Chattanooga 
Railroad  Company  through  Dade  county,  with  rights, 
privileges,  etc.,  of  original  charter  and  of  Hiwassee  Rail- 
road Company. 

SECTION  1.   He  it  enacted  by  the  Senate  and  Howe  of  Repre- 
x.'/ttntivex  of  the  State  of  Georgia,  in    General  Assembly  wet, 
nii<f  it  is  hereby  enacted  by  authority  of  the  same,  That  the  Nash- 
ville &  Chattanooga  Railroad  Company  shall   be  allowed  the 
privilege  of  making  every  necessary  reconnoissance  Leave  to 
and  survey  for  the  purpose  of  ascertaining  the  most  survey- 
eligible  route  of  said  contemplated  railroad  from  Nashville  to 
Chattanooga,  which  may  be  in  the  county  of  Dade  and  State  of 
Georgia. 

SEC.  2.  And  be  it  enacted  by  the  authority  aforesaid,  That, 
as  soon  as  said  route  through  the  county  of  Dade  is  ascertained," 
the  "Nashville  &  Chattanooga  Railroad  Company,''  chartered 

by  the  legislature  of  Tennessee,  shall  be  allowed 

Right  of  way. 
the  right  ot  way  for  the  extension  and  construction 

of  said  railroad  through  the  county  of  Dade,  and  that  said  com- 
pany shall  l>e  entitled  to  all  the  privileges,  rights,  and  immu- 
nities, and  be  subject  to  the  same  restrictions,  as  far  as  they 


62  ACTS    OF    GEORGIA    RELATING    TO 


other  are  aPplica'Jle^  as  ai'e  granted,  made,  and  prescribed 

rights,  etc.  for  ^he  foenefit,  government,  and  direction  of  the 
Hiwassee  Railroad  Company,  by  an  act  of  the  legislature  of 
Tennessee  incorporating  said  Hiwassee  Railroad  Company. 

SEC.  3.   And  be  it  further  enacted  by  the  authority  aforemid, 

That  the  Nashville  &  Chattanooga  Railroad  Company  shall  have 

and  enjoy  all  the  rights,  privileges,  and  immunities, 

and  be  subject  to  the  same  restrictions  as  are  granted 

to  and  imposed  upon  said  company  by  the  act  of  the  general 

assembly  of  Tennessee  incorporating  the  same,  so  far  as  said 

railroad  lies  in  the  county  of  Dade;  Provided,  That  any  addi- 

tional rights  and  privileges  hereafter  conferred  upon 

this  road  by  the  legislature  of  Tennessee  shall  be 

conferred  upon  the  Western  &  Atlantic  Railroad,  of  the  State  of 

Georgia,  by  the  legislature  of  Tennessee.     (Acts  Ga.  ,  1847-8, 

p.  172;  approved  December  29,  1847.) 

1.  It  will  be  noticed  that  by  sec.  3  of  the  above  act.  all  the  rights, 
privileges,  immunities,  etc.,  of  the  original  Nashville   &   Chattanooga 
Railroad  Company's  charter  was  conferred  upon  the  company,  by  the 
State  of  Georgia,  through    Dade  county,  provided  that  any  additional 
rights  and  privileges  thereafter  conferred  upon  the  company  should  also 
be  conferred  upon  the  Western  &  Atlantic  Railroad.     This  was  virtually 
done  by  Acts  Tenn.,  1847-8,  ch.  195.  p.  330,  which  provided:  "  That  all  the 
rights,  privileges,  and  immunities,  with  the  same  restrictions  which  are 
given  and  granted  to  the  Nashville  &  Chattanooga  Railroad  Company  by 
the  acts  of  the  general  assembly  of  this  state  incorporating  said  com- 
pany, so  far  as  they  are  applicable,  are  hereby  given  to  and  conferred 
upon  the  State  of  Georgia  in  the  construction  of  that  part  of  the  Western 
&  Atlantic  Railroad  lying  in  Hamilton  county,  Tenn.'' 

See  charter  of  Nashville  &  Chattanooga  Railroad  in  ch.  1  herein.  See 
also  resolutions  in  regard  to  Western  &  Atlantic  Railroad;  refer  to  index. 

2.  It  will  also  be  noticed  that  the  above  act  of  Georgia,  in  addition, 
confers  upon  the  Nashville  &  Chattanooga  Railroad  Company  all   the 
privileges,  rights,  immunities,  etc.,  of  the  Hlwnssee  Railroad  Company. 
(See   Hiwassee  charter,   below.)     This  company  was  chartered  by  the 
Acts  of  Tenn..  1835-6,  p.  23,  and  is  contained  in  a  very  rare  volume  enti- 
tled •'  Local  Acts  of  Tennessee"'  of  that  session.     This  book  will  hardly 
be  found  in  any  of  the  libraries  of  the  state,  save  at  the  state  capitol. 
It  was  discovered  there  by  accident. 

The  charter  of  the  Hiwassee  Railroad  Company  is  set  out  be- 
low in  order  that  the  full  rights,  powers,  etc.,  of  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  in  Georgia  may  be  known, 
as  it,  together  with  the  charter  of  the  Nashville  &  Chattanooga 
Railroad  Company,  jointly  determined  the  matter: 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  88 

Charter  of  Hiwassee  Railroad  Company. 

[Acts  Tenn.  (local),  183.V-0,  p.  23.] 

SKCTION  i.  Commissioners,  name,  general  powers,  route.— 

Be  it  enacted  Ity  the  General  A*m  utbly  of  the  State  of  Tt-nnefixee, 
That  William  Park,  Solomon  D.  Jacobs,  Kbene/er  Alexander, 
William  B.  A.  Ramsay,  Drury  P.  Armstrong,  of  Knoxville; 
Henry  Liggett,  William  S.  McEwen,  -  -  Hamilton,  Joseph 
Bird,  of  Kingston;  Fidelio  S.  Hunt,  Hugh  Graham,  James 
Dickinson,  Joseph  Jones,  William  Houston,  of  Tazewell;  Nich- 
olas Fain,  William  B.  Mitchell,  and  Clinton  Armstrong,  of 
Kogersville;  William  Dickson,  George  Jones,  and  Valentine 
Sevier,  of  Greeneville;  John  Blair,  Seth  J.  W.  Lucky,  and 
John  G.  Eason,  of  Jonesboro;  Robert  H.  Hynds,  John  Roper, 
William  Moore,  and  Joseph  Hamilton,  Jr.,  of  Dandridge; 
Micajah  C.  Rogers,  .James  P.  H.  Porter,  John  Cannon,  of  Se- 
vierville;  AVilliam  Wallace,  John  Sample,  J.  II.  Gillespie, 
William  A.  Spencer,  of  Maryville:  James  A.  Coffin,  James 
Green  way,  Samuel  Bicknell,  William  M.  Stakeey,  and  (iuilford 
Cannon,  of  Madisonville;  Matthew  Nelson,  Jacob  Pearson, 
Robert  Cleveland,  Hugh  Smith,  and  William  Montgomery,  of 
Philadelphia;  Solomon  S.  Bogart,  Onslow  G.  Murrell,  John 
W.  M.  Brazeale,  John  Crawford,  and  Thomas  Crutchtield,  of 
Athens;  John  L.  McCarty,  Archibald  K.  Turk,  Ezekiel  Bates, 
of  Calhoun;  John  White,  Hamilton  Bradford,  Henry  Bradford, 
of  Columbus;  John  Locke,  Richard  \N  aterhouse,  Thomas 
McCally,  Robert  N.  Gillespie,  of  Washington;  Samuel  L. 
Story,  John  Bridgeman,  and  Samuel  Robertson,  of  Pikeville; 
John  Kelly,  James  Francis,  and  William  Rice,  of  Jasper; 
Madison  Rawlings,  William  S.  Smith,  and  Samuel  Igone,  of 
Dallas;  William  Grant,  William  McMillin,  ami  Henry  Price, 
of  Bradley  county,  be,  and  are  hereby,  appointed  commission- 
ers, under  the  direction  of  a  majority  of  whom  subscriptions 
may  be  received  to  the  capital  stock  of  the  Hiwassee 
Railroad  Company,  hereby  incorporated:  which 
commissioners,  together  with  such  other  j>ersons  as  now  are  or 
may  hereafter  become  associated  with  thorn,  their  successors  and 
assigns,  shall  constitute  a  body  corporate,  and  they  are  hereby 


64:  ACTS    OF    GEORGIA    RELATING    TO 

incorporated  under  the  name  aforesaid,  and  in  that  name  they 
shall  have  perpetual  succession,  may  sue  and  be  sued,  plead  and 
be  impleaded,  and  shall  possess  and  enjoy  all  the  rights,  priv- 
cenerai  ileges,  and  immunities,  with  power  to  make  such 

powers.  by-laws,    ordinances,    rules,    and    regulations    not 

inconsistent  with  the  laws  of  this  state  and  the  United  States, 
as  shall  be  necessary  to  the  well-ordering  and  conducting  the 
affairs  of  said  company,  and  may,  by  their  by-laws,  declare 
vacant  the  place  of  any  director  for  nonattendance  or  neglect 
of  duty;  and  the  said  company  shall  be  capable  in  law  of  pur- 
chasing, accepting,  selling,  leasing,  and  conveying  estates — real, 
personal,  and  n.ixed — to  the  end  and  for  the  purpose  of  facil- 
itating the  intercourse  and  transportation  from 
Knoxville,  East  Tennessee,  through  the  Hiwassee 
district,  to  a  point  on  the  southern  boundary  of  Tennessee,  to 
be  designated  by  the  commissioners  hereinafter  mentioned  as 
the  mpst  practicable  route  to  intersect  the  contemplated  railroad 
from  Augusta  to  Memphis. 

1.  The  name  of    the   company  was    subsequently  changed   by  Acts 
Tenn.,   1847-8,  ch.  169.  p.   272,  sec.  3,  to  the  East  Tennessee  &  Georgia 
Railroad  Company. 

2.  See  Resolution  No.  6,  Acts  Tenn.,   1851-2,  p.   706,  which  requests 
Georgia  to  protect  the  interests  of  this  road,  and  keep  the  compact  en- 
tered into  between  the  two  states  in  regard  to  this  road  and  the  Western 
&  Atlantic  Railroad.     The  resolution  may  also  be  found  herein  among 
the  acts  of  Tennessee  relating  to  the  Western  &  Atlantic. 

SEC.  2.  Capital,  value  of  shares,  incorporation.—^  it  en- 
acted, That  the  capital  stock  of  said  company  shall  be  six  hun- 
dred thousand  dollars,  in  shares  of  one  hundred  each,  which 
shares  may  be  subscribed  for  by  corporations  or  individuals; 
but,  so  soon  as  four  thousand  shares  are  subscribed,  the  sub- 
scription shall  be  binding,  and  the  corporate  powers  of  said 
company,  as  herein  granted,  shall  commence,  and  have  as  full 
operation  as  if  the  whole  of  the  shares  composing  the  capital 
stock  were  subscribed. 

SEC.  3.  Reduction  of  shares,  when  and  how.— Be  it  enacted, 

That,  if  more  than  six  thousand  shares  shall  be  subscribed  to 
the  capital  stock,  the  commissioners,  or  a  majority  of  them, 
shall  reduce  the  subscription  to  six  thousand  shares  by  striking 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.  •'•.". 

off  from  the  highest  sul)scription  in  succession  in  such  manner 
tluit  no  subscription  shall  be  reduced  while  one  remains  larger, 
estimating  by  shares  instead  of  dollars,  and  if  there  shall  l>e  an 
excess,  then  lots  shall  be  drawn  by  the  commissioners  to  deter- 
mine who  are  excluded. 

SEC.  4.  Payments,  when  and  how  made;  forfeiture.—/^  ft 

enacted,  That  there  shall  be  paid  on  each  share  subscribed,  but 
not  until  four  thousand  shares  shall  have  been  subscribed,  such 
sum  as  the  president  and  directors  hereinafter  named,  or  a  ma- 
jority of  them,  may  direct,  and  in  such  installments,  not  ex- 
ceeding one-fourth  of  the  subscriptions  in  any  one  year;  /Vo- 
vided,  No  payment  shall  be  demanded  until  at  least  thirty  days' 
notice  shall  have  been  given  by  the  said  president  and  directors 
in  the  newspapers  printed  in  the  towns  of  Knoxville  and  Ath- 
ens, of  the  time  and  place  of  payment;  and,  if  any  subscril>er 
shall  fail  or  neglect  to  pay  any  installment  or  part  of  said  sub- 
scription thus  demanded  for  thirty  days  next  after  the  time  it 
fell  due,  the  stock  on  which  it  was  demanded,  together  with 
the  amount  paid  in,  may,  by  the  president  and  directors,  or  a 
majority  of  them,  be  declared  forfeited,  and,  after  due  notice, 
shall  be  sold  at  auction,  for  the  benefit  of  the  company,  or  they 
may  waive  the  forfeiture  after  thirty  days'  default,  and  sue  the 
stockholders  for  the  installments  due,  at  their  discretion. 

SEC.  5.  Subscriptions  void,  When.— Be  it  enacted,  That,  if 
the  subscription  of  four  thousand  shares,  herein  made  necessary 
for  the  incorporation  of  said  company,  shall  not  be  obtained  by 
the  first  day  of  January,  1838,  the  same,  and  all  subscriptions 
under  it,  shall  be  null  and  void  upon  the  stockholders  paying 
to  the  commissioners  a  sum  not  exceeding  one  dollar  on  each 
share,  to  defray  the  expenses  of  opening  the  books. 

SEC.  6.  Books  opened,  election  of  directors,  qualification. 

SCale  Of  voting. — Be  it  enacted,  That,  on  the  fourth  day  of 
July,  1836,  the  said  commissioners  shall  cause  books  for  the 
subscription  of  stock  to  be  opened  in  the  towns  of  Knoxville, 
Tazewell,  Rogersville,  Jonesboro,  Greeneville,  Dandridge,  8e- 
vierville,  Maryville,  Madisonville,  Columbus,  Philadelphia, 
Athens,  Calhoun,  Washington,  Dallas,  Jasper,  Pikeville,  and 

5 


66  ACTS    OF   GEORGIA    RELATING    TO 

Kingston,  and  at  such  other  places  as  they  may  deem  advisable, 
which  shall  continue  open  foj  the  space  of  ten  days,  or  until 
four  thousand  shares  of  the  capital  stock  shall  have  been  sub- 
scribed; and,  as  soon  as  it  is  ascertained  that  four  thousand 
shares  are  subscribed,  the  said  commissioners,  or  a  majority  of 
them,  shall  give  notice,  by  advertisement  in  the  newspapers 
aforementioned,  at  least  thirty  days  previous,  of  the  time  and 
place,  that  an  election  will  be  held  for  the  election  of  nine  di- 
rectors to  manage  the  affairs  of  said  company;  and,  at  such 
time  and  place,  each  stockholder  may  attend  in  person,  or  vote 
by  proxy  for  the  directors  aforesaid,  giving  one  vote  for  each 
share  of  which  he  may  be  the  owner,  in  that  and  all  succeeding 
elections;  and  the  directors  thus  elected  shall  elect  one  of  their 
body  president  of  the  board,  who  shall,  together  with  the  other 
directors,  continue  in  office  until  the  first  Monday  in  January 
ensuing,  and  until  their  successors  are  elected  and  duly  quali- 
fied. Any  three  of  the  commissioners  may  act  as  judges  of  the 
first  election,  and  none  but  a  stockholder  shall  be  eligible  as  a 
president  or  director. 

SEC.  7.  Elections  of,  and  number  and  power  of  directors; 

president. — Be  it  enacted,  That,  to  continue  the  succession  of 
the  president  and  directors  of  said  company,  nine  directors  shall 
be  chosen  annually  on  the  first  Monday  in  January,  at  such 
place  as  the  board  may  designate  by  the  stockholders;  and  the 
directors  shall  have  power  to  appoint  judges  of  elections.  The 
president  of  the  board  shall  be  elected  within  three  days  after 
the  board  is  organized.  If  any  vacancy  shall  occur  by  death, 
resignation,  or  otherwise,  the  vacancy  shall  be  tilled  by  the 
board,  and  the  persons  thus  appointed  shall  hold  their  office 
until  the  next  annual  election.  All  elections  required  to  be 
made  at  a  particular  time  and  place,  if  not  then  and  there  made, 
may  be  made  at  any  other  time  or  place  by  giving  the  usual 
notice  of  thirty  days,  and  the  old  officers  shall  continue  to  ex- 
ercise their  functions  until  their  successors  are  duly  elected  and 
qualified. 

SEC.  8.  Stockholders'  meetings,  removal  of  officers,  etc.— 

Be  it  enacted,  That  a  general  meeting  of  the  stockholders  shall  be 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  67 

held  annually  at  the  time  and  place  appointed  for  the  election 
of  president  and  directors,  at  which  time  and  place  it  shall  be 
the  duty  of  the  president  and  directors  in  office  to  exhibit  a 
clear  and  detailed  statement  of  the  affairs  of  the  company,  and 
at  such  meetings  a  majority  of  the  whole  votes  upon  the  stock 
shall  l>e  required  to  remove  an  officer,  or  to  reverse  decrees  or 
acts  of  the  directory. 

SEC.  9.  Oath  Of  Officers. — Be  it  enacted,  That  every  officer 
of  said  company  shall,  previous  to  entering  upon  the  duties  of 
his  office,  take  an  oath  or  affirmation  faithfully  to  discharge  his 
duty  according  to  the  provisions  of  this  act. 

SEC.  10.  Books  reopened,  When. — Be  it  enacted,  That  if  any 
of  the  six  thousand  shares  shall  remain  unsubscril>ed  for  after 
the  organization  of  said  company,  the  board  of  directors  shall 
have  power  to  open  the  books  for  the  sale  of  the  balance  of  the 
stock,  upon  giving  thirty  days'  notice  of  the  time  and  place, 
and  the  subscribers  of  such  stock  shall  have  all  the  rights  and 
privileges,  and  be  subject  to  the  same  regulations  of  the  original 
shareholders. 

SEC.  11.  Powers  of  president  and  directors. — Be  it  enacted, 

That  said  president  and  directors  shall  have  power  to  appoint 
a  cashier  and  all  such  officers,  engineers,  agents,  or  servants 
whatsoever  deemed  necessary  for  the  transaction  of  the  busi- 
ness of  the  company,  and  may  remove  any  of  them  at  pleasure; 
may  fix  the  salary  or  compensation  of  such  cashier,  engineers, 
officers  or  servants  in  the  employ  of  said  company,  and  to  de- 
termine by  their  by-laws  the  manner  of  adjusting  and  settling 
all  accounts  against  the  company,  and  also  the  manner,  effect, 
and  evidence  of  transfer  of  stock  in  said  company. 

SEC.  12.  Capital  StOCk  increased,  hOW.— Be  it  enacted,  That 
if  the  capital  stock  of  said  company  shall  l>e  found  insufficient 
for  the  purposes  of  this  act  of  incorporation,  it  shall  and  may 
be  lawful  for  the  president  and  directors,  or  a  majority  of  them, 
from  time  to  time,  to  increase  said  capital  stock  by  an  addition 
of  shares  to  any  amount,  so  that  the  whole  capital  shall  not  ex- 
ceed one  million  five  hundred  thousand  dollars,  for  which  they 
may  cause  subscriptions  to  be  received,  giving  notice  in  the 


68  ACTS   OF    GEORGIA    RELATING    TO 

manner  hereinbefore  prescribed,  the  purchasers  of  which  shall 
stand  in  the  same  relation  to  the  company  as  the  original  stock- 
holders. 

SEC.  13.  Additional  powers  of  directors,  width  of  right  of 

Way,  etc. — Be  it  enacted,  That  the  president  and  directors  of 
said  company  shall  be,  and  they  are  hereby,  vested  with  all  the 
powers  and  rights  necessary  for  the  building,  constructing,  and 
keeping  in  repair  of  a  railroad  from  Knoxville,  East  Tennessee, 
through  the  Hiwassee  district,  to  a  point  on  the  southern  boun- 
dary of  Tennessee,  on  the  nearest,  best,  and  most  practicable 
route.  The  said  road  shall  have  as  many  tracks  as  may  be 
deemed  necessary  by  the  board  of  directors,  but  shall  not  be 
more  than  two  hundred  feet  wide,  to  which  width  the  company 
may  purchase  and  cause  the  same  to  be  condemned  for  the  use 
of  said  road,  or  any  less  breadth,  at  the  discretion  of  the  di- 
rectory; and  they  may  cause  to  be  made,  or  contract  with 
others  for  making  of,  said  road  or  any  part  thereof;  and  they 
or  their  agents,  or  those  with  whom  they  may  contract  for 
making  any  part  of  said  road,  or  their  agents,  may  enter  upon, 
use,  and  excavate  any  land  which  may  be  laid  out  for  the  site 
of  said  road,  or  the  erection  of  warehouses,  engine  arbors,  res- 
ervoirs, booths,  stables,  officers'  and  mechanics'  shops,  or  other 
works  necessary  or  useful  in  the  construction  and  repair  thereof 
or  its  works.  They  may  fix  scales  and  weights,  build  bridges, 
lay  rails,  make  embankments  and  excavations,  and  may  use  any 
earth,  ground,  rock,  timber,  or  other  material  which  may  be 
wanted  for  the  construction  and  repair  of  any  part  of  said  road, 
and  may  construct  and  acquire  all  necessary  steam  engines, 
cars,  wagons,  and  carriages  for  transportation  on  said  road  by 
horse  or  steam  power,  and  all  necessary  apparatus  appertain- 
ing to  the  same. 

SEC.  14.  Right  of  way,  how  acquired;  damages.—^  it  en- 
acted, That,  whenever  it  shall  become  necessary,  after  said  road 
is  laid  out,  to  subject  the  land  of  individuals,  over  which  said 
road  is  laid  out,  to  the  use  of  said  company,  and,  if  the  right 
of  soil  of  the  owner  cannot  be  had  by  gift  or  purchase,  it  shall 
be  lawful  for  the  president  and  directors,  their  agents,  con- 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.  69 

tractors,  lal>orers,  and  servants,  to  enter  upon  such  lands  and 
proceed  in  the  opening  und  constructing  said  ruilroud  through 
the  same.  The  pendency  of  any  proceeding  in  court,  or  before 
arbitrators,  assessors,  or  valuers,  to  estimate  the  damages  that 
will  be  sustained  by  the  owner  or  proprietor  of  said  land  by 
reason  of  opening  said  road,  shall  in  no  manner  hinder  or  delay 
the  progress  of  said  work,  and  no  order  shall  be  made,  nor 
shall  any  injunction  or  supersedeas  be  awarded  by  any  judge 
or  court  to  hinder  or  delay  the  progress  of  said  work,  the  true 
intent  of  this  act  being  that  all  injury  that  may  be  done  to  any 
land,  without  the  consent  of  owners  or  proprietors  thereof,  by 
oj)ening  and  constructing  the  railroad  through  the  same,  over 
and  above  the  advantages  of  the  road  to  the  owners  or  propri- 
etors of  the  lands,  shall  be  fully  and  completely  compensated 
for  in  damages,  when  ascertained,  so  that  a  work  of  great  pub- 
lic utility  may  not  be  delayed  by  lawsuits. 

See  Resolution  No.  G,  passed  November  10,  1851,  by  legislature  of 
Tennessee,  requesting-  the  State  of  Georgia  to  protect  interest  of  this 
company,  and  keep  compact  entered  into  between  the  two  states  in  re- 
gard to  this  road  and  the  Western  &  Atlantic  Railroad.  (Acts  Tenn., 
1851-2,  p.  70S.)  The  resolution  may  be  found  herein  among  acts  of  Ten- 
nessee relating  to  the  Western  &  Atlantic  Railroad. 

SEC.  15.  Same,  condemnation  for. — Be  it  enacted,  That  the 
president  and  directors  of  said  company,  their  officers,  serv- 
ants, and  agents,  shall  have  full  power  and  authority  to  enter 
upon  all  lands  and  tenements  through  which  they  may  judge  it 
necessary  to  make  said  road,  and  lay  out  the  same  according  to 
their  pleasure,  so  that  neither  the  dwelling  house,  yard,  garden, 
curtilage  be  invaded  without  consent  of  the  owner  or  proprietor 
thereof;  and  if  the  company  cannot  agree  as  to  the  value  of 
the  land,  and  the  owner  will  not  convey  it  in  fee,  either  party 
may  apply  to  the  circuit  court  of  the  county  where  the  said 
land  lies,  by  giving  tive  days'  notice  if  the  owner  of  the  land 
resides  in  the  county,  and  twenty  days'  notice  if  he  resides  in 
any  other  county  in  this  state,  and  by  advertising  in  some  news- 
paper printed  in  Knoxville,  Athens,  or  Madison ville,  if  he  re- 
sides out  of  the  state,  or  be  a  body  corixmite,  to  appoint  com- 
missioners to  assess  the  value  and  condemn  the  land  for  the  use 
of  said  road;  and  the  court  shall  apj>oint  five  disinterested 


70  ACTS    OF    GEORGIA    RELATING    TO 

freeholders  of  said  county,  and  who  shall  be  sworn  or  affirmed 
justly  and  impartially  to  value  the  lands,  who  shall  ascertain 
what  damage  the  owner  will  sustain,  if  any,  by  the  location  of 
said  road  over  his  land,  always  taking  into  consideration  the 
benefit  the  road  may  be  of  to  the  owner,  and  the  tendency  said 
road  will  have  to  enhance  the  value  of  the  land;  and  said  five 
freeholders,  any  three  of  whom  concurring,  shall  report  to  said 
court  as  soon  as  practicable  the  damages,  if  any,  and  if  none 
are  sustained  they  shall  report  the  fact;  which  report,  if  unex- 
cepted  to,  shall  be  recorded,  and  if  any  damages  are  assessed, 
the  money  shall  be  paid  into  court  by  the  company.  The  fee 
simple  of  land,  so  valued  as  aforesaid,  shall  vest  in  said  com- 
pany; and  the  description  of  the  land  and  the  report  of  the 
commissioners,  shall  be  made  a  matter  of  record,  and,  when 
registered,  shall  have  the  effect  of  a  deed  of  conveyance  in  fee 
simple  to  the  company;  Provided,  however,  That  when  infants 
or  persons  non  compos  are  owners  of  the  land,  the  guardian 
shall  be  notified  of  said  proceedings  in  court,  and  if  there  be  no 
regular  guardian,  said  court  shall  appoint  some  person  well 
qualified  to  defend  and  protect  the  interest  of  such  infant  or 
nonsane  person. 

SEC.  16.  Same,  materials  to  keep  in  repair,  how  taken.— 

lie  it  enacted,  That  the  president  and  directors,  for  the  purpose 
of  making  said  road  or  repairing  the  same  after  it  shall  have 
been  made,  shall  be  at  liberty,  by  themselves  or  agents,  to  enter 
upon  any  adjacent  land,  and  cut,  quarry,  dig,  take  and  carry 
away  therefrom  any  timber,  stone,  gravel,  or  earth  which  may 
be  necessary;  Provided,  They  shall  not,  without  the  consent  of 
the  owner,  cut  down  any  fruit  tree  or  trees  preserved  in  any 
inclosure  for  shade  or  ornament,  or  take  away  any  materials 
constituting  any  part  of  a  fence  or  building.  For  all  which 
materials  under  the  authorit}^  of  this  act,  and  for  all  incidental 
injuries  done  to  ground,  wood,  inclosure,  or  crops,  in  carrying 
them  away,  the  said  company  shall  make  to  the  owner  a  reason- 
able compensation;  and  if  the  parties  cannot  agree  upon  the 
price  it  shall  be  ascertained  by  three  impartial  freeholders,  to 
be  appointed  by  a  justice  of  the  peace  at  the  application  of 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.  71 

either  party,  the  opposite  party  having  three  days'  notice  of  the 
application  to  the  justice.  The  three  freeholders  shall  lie  sworn 
to  do  impartial  justice  between  the  parties.  Their  award  shall  l>e 
returned  to  the  justice,  and  shall  stand  as  an  award  made  by 
order  of  court  upon  the  rights  of  the  parties,  upon  which  the 
justice  may  enter  judgment  and  issue  execution  if  within  his 
jurisdiction;  if  over,  he  shall  certify  the  proceedings,  as  in  other 
cases,  to  the  next  court,  to  be  proceeded  upon  as  an  award 
made  by  order  of  said  court;  Provided,  Either  party  may  have 
the  proceedings  corrected  by  certiorari,  and  not  by  apj>eal;  if 
the  proceedings  be  quashed,  the  court  may  appoint  other  val- 
uers, and  cause  justice  to  be  done  as  contemplated  before  and 
by  order  of  the  court,  quashing  said  proceedings. 

SEC.  17.  Right  of  way  through  state  lands.— Be  it  enacted, 

That  should  said  railroad  pass  over  vacant  and  unappropriated 
lands,  said  company  shall  have  the  exclusive  right  of  entering 
the  land  over  which  said  road  may  be  laid  out,  not  exceeding 
two  hundred  feet  in  breadth,  until  the  first  day  of  January, 
1839,  and  the  entry  taker  of  the  district  or  county  through 
which  said  road  may  be  laid  out  shall  not  receive  any  entry 
within  that  period  for  the  benefit  of  any  other  person  or  per- 
sons  than  said  .company,  under  the  penalty  of  five  thousand 
dollars,  to  be  recovered  by  action  of  debt  in  any  court  having 
cognizance  thereof,  at  the  suit  of  said  corporation;  Pwnilded, 
Said  company  shall  notify  the  entry  taker  of  the  different  coun- 
ties through  which  said  road  may  pass,  of  the  route  thereof. 

SEC.  18.  Lands  for  warehouses,  booths,  reservoirs,  etc., 

hOW  acquired. — Be  it  enacted,  That  said  railroad  company  shall 
have  power  to  acquire  and  own,  as  common  stock  of  said  com- 
pany, lands  near  and  connected  with  said  road,  on  which  to 
erect  warehouses,  booths,  arbors,  stables,  reservoirs,  etc.,  for 
the  pur|M)se  of  constructing  said  road  and  keeping  it  in  repair, 
and  for  the  convenience  of  transportation  and  places  of  (lejx)sit, 
which  improvements  they  are  hereby  authorized  to  construct. 
If  the  company  cannot  agree  with  the  owners  of  the  land  nec- 
essary for  the  above  purposes,  they  may  have  it  condemned  in 
the  same  manner  as  the  land  over  which  the  road  is  laid  out 


72  ACTS    OF    GEORGIA    RELATING    TO 

may  be  condemned  by  the  fifteenth  section  of  this  act;  Pro- 
vided, That  not  more  than  five  acres  shall  be  taken  at  any  one 
place  except  by  agreement  with  the  owners. 

SEC.  19.  Capital  stock  and  road,  personal  property.—^  it 

enacted,  That  the  whole  stock  and  property  of  said  company, 
real,  personal,  and  mixed,  and  the  issues,  profits,  and  proceeds 
thereof,  shall  be  holden  in  law,  and  are  hereby  declared,  to  be 
personal  property;  and  the  same  shall  be  governed  by  th'e  rules 
and  laws  governing  personal  property  in  all  cases,  and  the  said 
property  and  the  profits  arising  therefrom  shall  be  vested  in 
the  respective  shareholders,  their  heirs  and  executors,  adminis- 
trators and  assigns,  in  the  proportion  of  their  respective  shares, 
forever. 

SEC.  20.  Road  Crossings. —  Be  it  enacted,  That  whenever  it 
shall  become  necessary,  in  the  construction  of  said  road,  to 
cross  or  intersect  any  public  road  now  or  hereafter  established 
by  law,  it  shall  be  the  duty  of  said  company  so  to  construct 
said  road  as  not  to  impede  the  passage  or  transportation  of  per- 
sons or  property  along  the  same. 

SEC.  21.  Private  Crossings. — Be  it  enacted,  That  when  it 
shall  be  necessary  to  pass  through  the  improved  land  of  any 
individual,  it  shall  be  the  duty  of  said  company  to  provide  such 
individual  with  a  proper  and  suitable  wagon  way  across  said 
road  from  one  part  of  his  or  her  land  to  the  other,  if  the  same 
shall  be  required  by  said  owner,  at  the  time  the  route  of  said 
railroad  [is]  determined  on,  but  the  owner  of  such  land  may, 
at  any  time  after  said  railroad  shall  be  opened  and  completed, 
construct  and  make  such  wagon  way  across  the  same  at  his  or 
her  own  expense,  under  the  supervision  and  direction  of  said 
company. 

SEC.  22.  Time  of  beginning  and  completing  road.— Be  it 

enacted,  That  if  said  company  shall  not  begin  the  railroad  con- 
templated by  this  act  or  contract  for  the  construction  of  some 
part  thereof,  on  or  before  the  first  day  of  January,  1838,  and 
complete  the  same  on  or  before  the  first  day  [of]  January,  1844, 
the  interest  of  said  company  in  said  road  shall  be  forfeited  and 
cease,  and  also  all  right  to  take  tolls. 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.  73 

SEC.  23.  May  charge  tolls,  when;  exemption  from  taxa- 
tion.—  He  it  vnactrd,  That  us  soon  as  any  section  of  tive  miles 
of  said  road  shall  be  completed,  the  president  and  directors 
may  transport  all  |>ersons,  produce,  and  commodities,  such 
person  or  persons  or  owners  of  such  produce  or  commodities 
tirst  paying  to  said  company  or  their  agent  the  toll  that  may 
be  demanded  for  that  purpose.  The  capital  stock  of  said  com- 
pany shall  be  forever  exempt  from  taxation,  and  all  their  other 
pro|>erty  of  every  description  situated  within  this  state,  includ- 
ing the  road  and  rails,  shall  be  exempt  from  taxation  for  and 
during  the  period  of  twenty  years  from  the  completion  of  said 
road  and  no  longer. 

SEC.  24.  Dividends. — -Be  it  enacted.  That  after  said  railroad 
shall  l>e  completed,  or  any  five  miles  thereof,  the  president  and 
directors  shall,  on  the  first  Monday  in  January  and  July  in 
each  and  every  year,  declare  and  make  such  dividends  of  net 
profits,  or  the  tolls  herein  granted,  as  may  be  advisable,  to  be 
divided  among  the  proprietors. 

SEC.  25.  Injury  to  property  of,  punishment.— Be  it  enacted, 

That  if  any  person  shall  willfully  injure,  impair  or  destroy  any 
part  of  said  road  constructed  under  this  act,  or  any  of  the  nec- 
essary work,  buildings,  machines,  wagons,  cars,  booths,  reser- 
voirs, bridges  or  viaducts,  such  person  shall  be  subject  to  in- 
dictment, and,  on  conviction,  shall  be  fined  and  imprisoned  at 
the  discretion  of  the  court  and  jury,  and  shall  moreover  be 
liable  to  an  action  of  damages  at  the  suit  of  said  company  in 
any  court  having  cognizance  thereof. 

SEC.  26.  Transportation  Charges. — Be  it  enacted,  That  said 
company  shall  be  authorized  to  charge  the  following  tolls,  to 
wit:  For  every  passenger,  with  not  exceeding  one  hundred 
pounds  of  baggage,  not  exceeding  six  cents  per  mile;  for  every 
one  hundred  pounds  of  goods,  wares,  merchandise,  or  prtxiuce 
and  commodities  of  every  description,  not  exceeding  one-half 
cent  per  mile  on  heavy  articles,  and  ten  cents  per  cubic  foot 
on  articles  of  measurement. 

SEC.  27.   Connections  with,  authorized.  — /k  it  enacted, 

That  full  right  and  privilege  is  hereby  reserved  to  the  citizens 


74  ACTS    OF    GEORGIA    RELATING    TO 

of  this  state,  or  any  company  hereafter  to  be  incorporated 
under  the  authority  of  this  state,  to  connect  with  the  road 
hereby  provided  for  any  other  railroad  or  public  improvement, 
provided  no  injury  is  done  to  the  works  made  and  created  by 
said  company  hereby  incorporated ;  And  provided  also,  That 
the  same  shall  not  interfere  with  the  privileges  hereinbefore 
granted. 

SEC.  28.  Terminus  Changed,  When. — Be  it  enacted,  That  if 
an  amount  of  stock  should  not  be  subscribed  sufficient  to  com- 
plete the  whole  work  from  Knoxville  to  the  south  boundary 
line  of  this  state,  as  contemplated  by  this  act,  or  if  a  majority 
of  the  board  of  directors  should  deem  it  advisable  or  expedient 
to  begin  the  work  at  some  point  on  the  Big  Tennessee  River, 
and  should  complete  the  road  from  such  point  to  the  south 
boundary  line  of  the  State  of  Tennessee,  the  work  may  be 
considered  as  completed,  anything  in  this  act  to  the  contrary 
notwithstanding.  But  the  board  of  directors  may,  in  their 
discretion,  continue  said  road  to  Knoxville,  should  they  begin 
the  work  at  some  other  point.  (Acts  Tenn.  (local),  1835-6, 
p.  23.) 

3.  Stevenson,  Sand  Mountain  &  Dalton  Railroad  Company 

allowed  to  connect  with  Nashville,  Chattanooga  &  St. 
Louis  Railway  in  Dade  county,  Georgia. 

SECTION  V.  ...  And  that  said  railroad  company  shall 
have  power  and  authority  to  lay  out  and  construct  branch  roads 
from  the  main  line  at  any  point  in  Dade  county,  to  intersect 
with  the  Nashville,  Chattanooga  &  St.  Louis  Railroad  Com- 
pany and  the  Alabama  Great  Southern  Railroad  at  any  point 
in  Dade  county,  Georgia,  that  may  be  selected  by  the  company; 
and  .  .  .  (Acts  Ga.,  1889,  sec.  V.,  p.  393;  approved 
November  13,  1889.) 

4.  How  service  of  process  originally  authorized  against  Nash- 

ville &  Chattanooga  Railroad  Company  by  persons  hav- 
ing claims  against  road  in  Georgia. 

WHEREAS,  The  Nashville  &  Chattanooga  Railroad  runs  about 
three  miles  through  the  county  of  Dade,  in  this  state,  and 


NASHVILLE,    CHATTANOOGA    A   ST.    LOUIS   RAILWAY.  75 

there  being  no  station  or  agent  in  the  state  upon  whom  to  per- 
fect service  on  said  company  for  any  injury  to  stock,  proj>erty 
or  person;  for  remedy  whereof, 

Be  it  enacted,  That  from  and  after  the  passage  of  this  act, 
the  justices  of  the  inferior  court  in  and  for  the  county  of  Dade 
shall  cause  to  be  erected  a  post  at  a  place  in  said  county  known 
as  Lookout,  on  said  road,  and  upon  any  process,  warrant,  sum- 
mons or  notice  from  the  superior,  inferior  or  justices'  court 
being  issued  against  said  company,  and  the  same  being  posted 
on  said  post,  and  a  copy  thereof  sent  by  mail  to  the  address  of 
the  president  of  said  railroad,  on  or  before  the  day  it  is  placed 
on  s  lid  post,  by  the  sheriff,  constable  or  coroner  authorized  to 
serve  the  same,  shall  be  deemed  and  held  as  a  full  and  com- 
plete service,  as  if  the  same  had  been  served  on  any  officer, 
agent  or  employee  of  said  company,  and  shall  have  the  same 
binding  eifect  as  the  service  upon  any  of  said  officers,  agents, 
and  employees  of  any  railroad  company  in  this  state;  and  said 
company  is  hereby  held  responsible  and  liable  for  all  injury 
and  damages  to  the  citizens  of  this  state  that  the  several  rail- 
road companies  in  this  state  are,  and  the  service  of  any  writ, 
process,  summons  or  notice  by  any  officer  authorized  to  serve 
the  same,  upon  complying  with  terms  aforesaid,  shall  be 
deemed  and  held  complete  and  full  in  law.  (Acts  Ga.,  1860, 
p.  45;  passed  December  20.) 

1.  This  act  was  subsequently  amended  as  follows: 

SECTION  1.  Be  it  enacted,  That  from  and  after  the  passage  of  this  act 
the  ordinary  of  the  county  of  Dade  shall  cause  to  be  erected  a  post  at  a 
place  on  the  Nashville  «fe  Chattanooga  Railroad,  in  said  county,  known 
as  Hooker,  and  upon  any  warrant,  summons,  process,  notice  from  any 
court  or  officer  of  said  county  being  posted  on  said  post  and  a  copy  sent 
by  mail,  as  required  by  said  act.  shall  be  deemed  and  held  a  complete 
and  full  service,  and  that  the  said  act,  assented  to  20th  December,  1860,  as 
hereby  amended,  is  declared  to  be  in  full  force. 

SKC.  2.  That  no  person  complying-  with  the  provisions  of  this  act  shall 
be  denied  the  privilege  of  suing  in  any  court  in  said  county  having  juris- 
diction of  the  subject-matter,  for  any  injury  done  by  said  Nashville  & 
Chattanooga  Railroad  Company  to  his  or  her  |>erson  or  property:  Pn>- 
vlded,  That  any  action  that  has  already  accrued  shall  be  brought  within 
the  next  six  months  after  the  passage  of  this  act:  Ami  ;>rorM«l  further, 
Said  cdmpanj'  shall  not  be  liable  to  be  sued  for  any  damage  done  to  the 
person  or  property  of  any  person  prior  to  the  flrst  of  January,  1865. 
(ActsGa.,  1860,  No.  126,  p.  139). 

2.  The  supreme  Court  of  Georgia,  in  the  case  of  .V..  f.  it  Sf.  L.  /?»/.  v. 
McMahon,  held  the  above  act  to  be  good  and  the  service  as  provided  for 
therein  valid.     70  Ga.,  585. 


76  NORTHWESTERN    BRANCH    OF    THE 


CHAPTER  III. 

THE  NASHVILLE  &  NORTHWESTERN  RAILROAD  COMPANY. 
(NORTHWESTERN  BRANCH.) 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Railway. 

—Under  the  general  improvement  laws  of  1851-2,  and  amend- 
ments thereto,  the  State  of  Tennessee,  through  its  governor, 
indorsed  the  bonds  of  the  various  railroads  in  the  state,  to  aid 
in  their  construction,  retaining  a  lien  on  the  respective  roads  so 
assisted  as  security  therefor.  Among  the  number  was  the 
Nashville  &  Northwestern  Railroad  Company. 

Default  having  been  made  in  the  payment  of  interest  on  the 
bonds  issued  for  its  benefit,  a  bill  was  tiled  in  the  chancery 
court  at  Nashville  in  the  name  of  the  state  against  the  Edgetield 
&  Kentucky  Railroad  Company  et  ah:,  to  which  the  said  Nash- 
ville &  Northwestern  Railroad  Company  was  also  made  a 
defendant,  seeking  to  enforce  the  state's  lien  or  statutory  mort- 
gage. This  bill  was  filed  in  pursuance  of  an  act  of  the  legis- 
lature of  1870-71,  ch.  23,  p.  25,  authorizing  the  sale  of  all 
delinquent  roads,  the  tenth  section  of  which  provided  "that 
upon  the  sale  of  any  of  the  franchises  of  either  of  the  railroad 
companies  by  the  commissioners  under  the  provisions  of  this 
act,  all  the  rig fits,  privileges,  and  immunities  appertaining  to 
the  franchise  so  sold,  under  its  act  of  incorporation,  and  the 
amendments  thereto,  and  the  general  improvement  law  of  the 
state  and  acts  amendatory  thereof,  shall  be  transferred  to  and 
vest  in  such  purchaser,  and  the  purchaser  shall  hold  said  fran- 
chise subject  to  all  liens  and  liabilities  in  favor  of  the  state,  as 
now  provided  by  law  against  the  railroad  companies.'' 

On  July  6,  1871,  a  decree  was  entered  directing  the  said 
Nashville  &  Northwestern  Railroad  to  be  sold,  at  which  sale 
the  Nashville  &  Chattanooga  Railroad  Company,  which  has 
subsequently  changed  its  name  to  the  Nashville,  Chattanooga 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  77 

&  St.  Louis  Railway,  became  the  purchaser.  The  amount  paid 
for  the  road  was  $2,400,000,  in  bonds  of  the  state,  with  the 
coui>ons  of  January,  1871,  and  subsequent  coupons  attached, 
subject  to  the  condition  that  the  claim  of  the  Nashville  &  Chat- 
tanooga Railroad  Company  against  the  Nashville  &  Northwest- 
ern Railroad  Company  for  expenditures  made  under  the  lease 
of  the  latter  road  to  the  former,  amounting  to  $537, 000,  should 
be  paid  out  of  the  purchase  money  in  bonds  of  the  state,  the 
Nashville  &  Chattanooga  Railroad  Company  agreeing  to  take 
$700,000  of  the  bonds  with  the  coupons  attached  in  satisfaction 
of  said  debt. 

This  sale  was  continued  November  21,  1872,  as  will  fully 
appear  in  minute  book  "W,"  p.  485,  of  the  chancery  court 
at  Nashville,  Tenn. 

Prior  to  the  chancery  court  sale  above  mentioned,  the  Nash- 
ville &  Northwestern  Railroad  Company  had  constructed  its 
road  from  Nashville  to  Union  City,  Tenn.,  under  its  charter, 
and  had  purchased  the  Hickman  &  Obion  Railroad,  which  was 
chartered  both  by  the  legislature  of  Tennessee  (Acts  1S53-54, 
ch.  307,  p.  685),  and  by  that  of  Kentucky  (Acts  1853-54,  ch. 
781,  p.  348),  and  which  road  extended  from  Union  City,  Tenn., 
to  Hickman,  Ky.  The  entire  line  of  road  from  Nashville  to 
Hickman,  including  that  purchased  from  the  Hickman  &  Obion 
Railroad  Company,  was  sold  under  this  decree,  thus  giving  the 
purchaser  a  continuous  line  from  Nashville,  Tenn.,  to  Hick- 
man, Ky. 

The  sale  of  the  Hickman  &  Obion  Railroad  to  the  Nashville  *  North- 
western Railroad  was  legal.  It  was  authorized  by  Acts  Tennessee, 
1855-56.  ch.  2,  p.  3,  and  by  Acts  Kentucky,  1855-50,  ch.  142,  p.  281,  both 
of  which  acts  are  set  out  in  the  next  chapter,  as  well  as  the  charter  of 
the  Hickman  A  Obion  Railroad  Company,  and  the  deed  to  its  road. 

What  franchises,  etc.,  passed  under  the  chancery  court  sale. 

—The  decree  of  sale  in  this  case,  under  and  by  virtue  of  the 
Acts  of  1870-1,  ch.  23,  above  referred  to,  "ordered,  adjudged, 
and  decreed  that  all  the  right,  title,  claim,  and  interest  of  all 
parties  to  the  suit  in  and  to  the  Nashville  &  Northwestern  Rail- 
road, its  property  and  franchises,  including  the  right  to  build 
a  branch  road  from  Huntingdon  to  Jackson,  without  any  re- 


78  NORTHWESTERN    BRANCH    OF    THE 

sponsibility  on  the  part  of  the  state,  be,  and  the  same  are 
hereby,  divested  out  of  them  and  vested  in  the  Nashville  & 
Chattanooga  Railroad  Company,  in  absolute  right,  with  all  the 
rights  and  privileges  heretofore  determined  by  the  decrees  of 
this  court,  that  belong  to  the  purchasers  of  the  road  sold  there- 
under, subject  to  the  lien  of  the  state  for  purchase  money," 
etc.  (See  minute  book  "W,"  p.  485,  in  chancery  court  at 
Nashville:  also  book  "V,"  p.  185.) 

1.  The  sale  vested  in  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
all  the  immunities  from  taxation  contained  in  the  original  charter  of  the 
Nashville  &  Northwestern  Railroad  Company.     12  Lea,  583;  117  U.  S., 
833. 

2.  See  charter  itself,  and  amendments  thereto,  following,  for  enu- 
meration of  franchises,  rights,  and  immunities,  all  of  which  passed,  save 
the  unnecessary  franchise  in  this  instance  of  being  a  corporation.     The 
latter  franchise  was  unnecessary,  as  the  Nashville  &  Chattanooga  Rail- 
road Company  was  already  incorporated. 

Width  Of  right  Of  way.— The  Nashville,  Chattanooga  &  St. 
Louis  Railway,  having  purchased  all  the  property,  rights, 
franchises,  privileges,  and  immunities  of  this  company,  as  above 
explained,  it  is  now  entitled,  on  the  line  of  this  road,  to  all  the 
rights  conferred  in  sees.  23  and  24  of  the  charter  of  the  Nash- 
ville &  Northwestern  Railroad  Company,  which  give  a  hundred 
feet  on  each  side  of  the  center  of  said  road,  in  the  absence  of 
any  contract  with  the  original  landowner  to  the  contrary.  5 
Pick.,  293. 

There  can  be  no  question  of  this,  on  that  part  of  the  road 
from  Nashville  to  Union  City,  as  that  was  constructed  by  the 
Nashville  &  Northwestern  Railroad  Company  under  its  own 
charter.  As  to  that  part  from  Union  City  to  Hickman,  Ky., 
however,  which  was  constructed  by  the  Hickman  &  Obion 
Railroad  Company,  under  its  charter,  before  the  Nashville  & 
Northwestern  Railroad  Company  purchased  it,  and  which  char- 
ter contained  no  such  clause,  there  is  room  for  argument.  It 
is  clear  that  no  such  right  would  exist  in  favor  of  the  Hickman 
&  Obion  Railroad  Company,  should  that  company  still  be  in 
existence  and  own  the  road.  With  the  Nashville,  Chattanooga 
&  St.  Louis  Railway  it  is  different.  That  company  is  the  law- 
ful purchaser  of  the  property,  rights,  franchises,  and  privileges 
of  the  Nashville  &  Northwestern  Railroad  Company.  The 


NASHVILLE,    CHATTANOOGA    <&    ST.    LOUIS    RAILWAY.  79 

charter  of  the  latter  company,  in  both  Tennessee  and  Ken- 
tucky, authorized  it  to  build  a  road  from  Nashville  to  Hick- 
man;  and  granted  it  one  hundred  feet  on  each  side  of  the 
center  of  the  road,  in  the  absence  of  any  agreement  to  the  con- 
trary with  the  original  landowner,  from  and  to  the  points  men- 
tioned as  its  termini.  The  mere  fact  that  it  purchased  a  farm, 
bridge,  or  even  a  railroad,  lying  within  the  limits  of  its  author- 
ized extension,  would  not  deprive  it  of  its  statutory  franchises. 
If  the  Nashville  &  Northwestern  Railroad  Company  had  have 
only  been  chartered  to  run  from  Nashville  to  Union  City,  it 
might  have  been  different.  The  purchase  then  of  the  Hickman 
&  Obion  Railroad  might  have  vested  it  with  only  those  fran- 
chises possessed  by  that  company  over  that  part  of  the  road. 
As  it  was,  however,  it  was  chartered  to  run  from  Nashville  to 
Ilii-kinan.)  and  all  the  rights,  privileges,  and  franchises  con- 
tained in  its  charter  were  granted  over  its  entire  route.  It  is 
true  that  by  Acts  Tenn.,  1855-6,  ch.  2,  p.  3,  the  Nashville  & 
Northwestern  Railroad  Company  was  allowed  to  change  its 
western  terminus  to  Union  City,  Tenn.,  but  this  act  was  not 
accepted,  as  it  also  authorized  the  purchase  of  the  said  Hick- 
man &  Obion  Railroad,  which  was  done,  thus  extending  its 
line  to  the  western  terminus  originally  mentioned  in  its  charter. 
Should  this  act  be  construed,  however,  as  changing  the  western 
terminus  to  Union  City,  it  is  even  then  an  open  question 
whether  or  not  the  rights,  privileges,  and  franchises  contained 
in  the  charter  of  the  Nashville  &  Northwestern  Railroad  Com- 
pany and  the  Nashville,  Chattanooga  &  St.  Louis  Railway  do 
not  spread  out  and  embrace  this  road,  as  well  as  all  after 
acquired  roads,  for  the  authority  to  purchase  and  operate  other 
roads  would  doubtless,  by  implication,  change  the  termini  of 
the  original  road  and  constitute  the  road  so  purchased  a  part  of 
its  main  stem.  Thus,  in  New  Jersey,  it  was  held  that  "  where 
a  railroad  sixty  feet  wide  is  purchased  by  another  company 
which  had  power  to  condemn  a  hundred  feet,  the  latter  com- 
pany, after  Gyrating  the  road  for  several  years,  might  widen 
it  to  a  hundred  feet."  23  N.  J.  L.,  323;  4  Vroom,  323;  Rorer 
on  Railroads,  p.  331. 


80  NOKTHWESTERN    BRANCH    OF    THE 

If  the  Hickman  &  Obion  Railroad  Company,  therefore,  had 
have  only  condemned  fifty  feet,  the  original  landowners,  when 
the  Nashville  &  Northwestern  Railroad  Company  and  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  Company  threw  the 
mantle  of  their  franchises  over  the  road,  would  have  had  the 
right  to  apply  for  an  extra  assessment  of  damages  for  the  differ- 
ence in  appropriation.  If  they  failed  to  do  so,  they  are  now 
barred,  and  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
Company  should  be  entitled  to  one  hundred  feet  on  each  side  of 
the  center  of  the  road  from  Union  City  to  Hickman. 

This  question  has  never  been  decided  in  Tennessee,  however, 
and  a  test  case  should  be  made  before  any  extensive  work  is 
undertaken. 

For  a  general  discussion  of  the  right  to  take  more  than  100  feet  on 
each  side  of  the  center  of  the  road,  when  necessary  for  railroad  pur- 
poses, see  Eminent  Domain,  Right  of  Way,  herein.  Refer  to  index. 

Where  Nashville  &  Northwestern  Railroad  Company  incor- 
porated.— The  Nashville  &  Northwestern  Railroad  Company 
was  chartered  both  in  Tennessee  and  in  Kentucky.  The  Ten- 
nessee charter  alone  is  set  out  in  this  chapter.  The  succeeding 
chapter  will  contain  all  acts  of  Tennessee  and  Kentucky  in  ref- 
erence to  the  road.  Among  the  latter  acts  will  be  found  the 
Kentucky  charter.  The  mere  fact,  however,  that  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  purchased  this  road 
would  not  make  it  a  domestic  corporation  of  Kentucky.  The 
Nashville,  Chattanooga  &  St.  Louis  Railway  has  never  been 

*/ 

chartered  in  any  state  save  Tennessee,  though  it  owns  and 
operates  many  branches  that  were  originally  chartered  in  Ken- 
tucky, Alabama,  and  Georgia.  Such  purchases,  however,  did 
not  operate  to  incorporate  it  in  those  states.  Elliott  on  Rail- 
roads, sec.  26;  1  Hilton  (N.  Y.),  62;  30  N.  J.  L.,  473;  31 
N.  J.  L.,  531;  32  Ohio  St.,  468;  58  Pa.  St.,  26.  See,  how- 
ever, 85  Tenn.,  189. 

Distance  built  When  purchased.— The  entire  line  cf  road 
from  Nashville,  Tenn. ,  to  Hickman,  Ky. ,  had  been  constructed 
when  the  Nashville  &  Chattanooga  Railroad  Company  pur- 
chased this  road. 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.  81 

ORIGINAL  CHARTER  OF  NASHVILLE  &  NORTH- 
WESTERN RAILROAD  COMPANY. 

[Acts  Tennessee  1851-2,  ch.  74. J 

SBC.  i.  Incorporation,  name,  general  powers.—  He  it  en- 

<i<-f,  if  by  the  General  Assembly  of  thf  State  of  Tennessee,  That 
for  the  purpose  of  establishing  a  communication  by  railroad 
between  Nashville  and  the  Mississippi  river,  beginning  at  Nash- 
ville and  terminating  on  the  Mississippi  river,  in  Obion  county, 
the  formation  of  a  company  is  hereby  authorized,  which,  when 
formed,  shaH  be  a  body  corporate  by  the  name  and 
style  of   the  Nashville  &   Northwestern    Railroad  "ame- 
Company, *  and  by  the  said  corporate  name  shall  be  capable  to 
buy,  receive  by  gift,  hold,  sell  and  convey  real  and  j>ersonal 
estate  as  hereinafter  provided,  make  contracts,  sue  Cenera, 
and  be  sued,  make  by-laws,  and  do  all  other  acts  D°wers.* 
properly  incident  to  a  corporation  and  necessary  and  proper  to 
the  transaction  of  the  business  for  which  it  is  incorporated,  and 
to  have  and  use  a  common  seal,  and  the  same  to  alter  and  de- 
stroy at  its  pleasure,  and  have  perpetual  succession  of  members. 

1.  *Name  changed. — After  the  purchase  by  the  Nashville  &  Chatta- 
nooga  Railroad  Company,  as  heretofore  explained,  of  the   properties, 
franchises,  rights,  privileges,  immunities,  etc.,  of  this  company,  it  filed 
a  bill  in  the  chancery  court  at  Nashville,  Tenn.,  and,  among  other  things, 
asked  that  the  name  of  this  company  be  changed  to  the  Nashville,  Mem- 
phis &  St.  Louis  Railway.  '     This  was  granted,  as  per  decree  of  May  14, 
1872,  entered  in  minute  book  V,  pp.  185-192  of  said  court.     This   was 
clearly  within  the  powers  of  the  chancery  court  at  that  time.     3  15ax., 
98;  1  Tenn.  Ch.  Rep.,  83,  95,  97;  12  Lea,  97;  11  Lea,  3;  9  Lea.  380.     Subse- 
quently, however,  the  Nashville  it  Chattanooga  Railroad  Company,  filed 
another  bill,  alleging  it  had  purchased  this  road,  and  had  its  own  name 
changed  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway.    See  decree 
rendered  May  30,  1873,  in  chancery  court  at  Nashville  in  book  X,  pp.  220- 
222,  which  decree  is  also  inserted  herein.     After  this  was  done  the  name 
of  the  Nashville,  Memphis  &  St.  Louis  Railway  was  abandoned,  as  its 
road   had  been  absorbed   by  purchase  into  the  general  system  of  the 
Nashville,  Chattanooga  &  St.  Louis  Railway. 

2.  Incorporated  in  what  states. — In  addition  to  this  charter  granted 
by  the  State  of  Tennessee,  the  legislature  of  Kentucky,  on  March  8, 
1856,  passed  an  act  setting  out  this  charter  in  full,  and  "  rc-cnnrtc<l  and 
tuJoptetl  It,"  together  with  the  amendments  passed  by  the  legislature  of 
Tennessee,  on   February  28,    1852.  and   February    15,  1S54,  with  all  the 
privileges,  franchises,  powers,  and  responsibilities  conferred  and  granted 
by  said  charter,  so  far  as  the  same  were  applicable  and  not  inconsistent 
with  the  constitution  of  Kentucky.     This  act,  together  with  all  others 
of  Tennessee  and  Kentucky  relating  to  the  road,  are  set  out  in  the  next 
chapter. 

6 


82  ORIGINAL    CHARTER    NORTHWESTERN    BRANCH 

As  will  be  seen,  this  act  made  the  Nashville  &  Northwestern  Railroad 
Company  a  domestic  corporation  of  Kentucky,  and  gave  it  certain  ad- 
vantages which  will  be  more  fully  explained  hereafter. 

The  mere  fact,  however,  that  the  Naxhville,  Chattanooga  &  St.  Louis 
Railway  purchased  the  railway  would  not  make  the  said  Nashville,  Chat- 
tanooga «fc  St.  Louis  Kailwey  a,  domestic  corporation  of  Kentucky.  The 
Nashville.  Chattanooga  &  St.  Louis  Railway  has  never  been  chartered 
in  Kentucky,  and  is  therefore  a  foreign  corporation  there,  though  it  op- 
erates this  branch  in  that  state  with  all  the  rights,  privileges,  and  fran- 
chises of  the  old  company,  which  was  a  domestic  corporation  in  Ken- 
tucky as  well  as  Tennessee. 

3.  f  General  powers. — By  Acts  Tenn.,  1865-6,  ch.  91,  p.  274,  this  com- 
pany was  allowed  to  construct  a  branch  road  from  Huntington,  to  con- 
nect with  the  Mississippi  Central  &  Tennessee  and  the  Mobile  &  Ohio 
Railroad.     For  terms  and  conditions,  see  act  itself  in  chapter  following. 

4.  By  Acts  Tenn..  1857-8,  ch.  89,  this  company  was  empowered  to  unite 
its  road  with  the  Memphis,  Clarksville  &  Louisville  Railroad  Company; 
to  change  the  location  of  its  route;  to  consolidate  with  the  Mississippi  & 
Tennessee  Central  Railroad.     For  terms,  see  act  itself  in  chapter  fol- 
lowing. 

5.  By  Acts  Tenn.,  1855-6,  ch.  11,  p.  3,  this  company  was  authorized  to 
purchase  the  Hickman  &  Obion  Railroad;  also  to  fix  its  western  termi- 
nus at  the  intersection  of  the  Mobile  &  Ohio  Railroad.     For  terms,  see 
act  itself  in  chapter  following. 

6.  By  Acts  Tenn.,  1859-60,  ch.  177,  this  company  was  authorized  to 
lease  or  consolidate  with  the  Mississippi  Central  Railroad  Company,  or 
to  unite  with  any  company  whose  road  may  connect  with  it  in  the  direc- 
tion of  New  Orleans.     For  terms,  see  act  itself  in  chapter  following. 

7.  By  Acts  Tenn.,   1853-54,  ch.   132,   \  7,  this   company  was   allowed, 
from  its  intersection  with  the  Nashville  &  Memphis  Railroad  Company, 
and  the  Memphis,  Clarksville  &  Louisville  Railroad  Company,  the  same 
right,  power,  and  privilege  to  run  its  cars  upon  the  tracks  of  either  of 
said  roads  as  is  provided  in  the  act  chartering  the  Memphis  &  Charleston 
Railroad  Company,  at  the  point  of  intersection  with   the  Nashville  & 
Chattanooga  Railroad  Company.     See  act  itself  in  chapter  following. 

SEC.  2.  Value  of  shares,  books  opened,  commissioners.— 

Books  of  subscription  of  thirty  thousand  shares  to  the  capital 
Value  of  stock  of  said  company,  of  one  hundred  dollars  each, 
shares.  shall  be  kept  open  for  sixty  days,  between  the  hours 
of  ten  o'clock  in  the  morning  and  four  o'clock  in  the  evening 
of  each  of  those  days,  at  the  following  places,  and  by  the  fol- 
lowing commissioners,  to  wit: 

At  Nashville,  Thomas  Harding,  Jacob  McGavock,  L.  Da- 
vidson, -  -  Joslin,  M.  K.  Cockrill,  W.  Dozier,  H.  Hoi- 
Commission-  linsworth,  M.  Barrow,  W.  Watkins,  Samuel  Wat- 
ers-  kins,  D.  T.  McGavock,  Willoughby  Williams,  West 

H.  Humphreys,   A.    W.   Vanleer,  Francis  McGavock,   Daniel 
Graham,  John  Harding,  Clark  Bosley,  -          -  Newsom,  - 
Atkinson,  Bird  Douglas,  and  Thomas  Sheron. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  83 

At  Charlotte,  Sylvester  Finley,  Kol>ert  McNeilly,  Thos  K. 
Grigsby,  John  C.  Collier,  and  William  H.  Napier. 

At  Waverly,  John  Wiley,  T.  B.  Groin,  Robert  McCreary, 
V.  S.  Allen,  H.  H.  Marable. 

At  Canulen,  William  McCutchen,  C.  K.  Wyley,  W.  P. 
Morris,  E.  Perkins,  and  D.  P.  Hudson. 

At  Paris,  B.  C.  Brown,  J.  W.  Blanton,  W.  H.  Thompson, 
J.  C.  McNeil,  L.  M.  Tharp,  and  C.  D.  Venable. 

At  Dresden,  Win.  Gleeson,  Jno.  A.  Gardner,  Collins  Mc- 
Cutchen, James  W.  Hays,  Alfred  Gardner,  and  Win.  Snapp. 

At  Troy,  -  -  Cochrane,  P.  Marberry,  -  -  Moffat, 

W.  S.  S.  Harris. 

At  Dover,  A.  W.  Wall,  Samuel  Graham,  T.  H.  Atkins, 
Wm.  B.  Cherry,  and  J.  M.  Wall. 

Hy  decree  of  chancery  court  at  Nashville.  May  14,  1872,  minute  book 
"V,"pp.  185-192,  the  charter  was  amended  so  that  the  capital  stock 
should  be  eighteen  thousand  shares,  of  one  hundred  dollars  each,  and 
allowing  the  capital  stock  to  be  increased  at  any  time.  Hut  see  discus- 
sion of  validity  of  chancery  court  amendments  herein. 

SEC.  3.  Subscriptions  to  StOCk,  payment.— That  said  com- 
missioners, or  any  two  of  them,  at  each  of  the  places  afore- 
said, shall  receive  subscriptions  for  stock  in  said  railroad  com- 
pany during  the  time  the  said  books  are  directed  to  be  kept 
open,  and  on  each  share  so  subscribed  shall  demand  and  receive 
the  sum  of  five  dollars  in  cash,  or  a  note  or  check  for  the  same, 
without  which  the  subscription  shall  be  void. 

1.  Hy  Acts  Tenn.,  1853-4,  ch.  312,  sec.  4.  the  company  was  allowed  to 
receive  subscriptions  for  three-quarters,  half,  and  quarter  shares,  and 
issue  certificates  for  same. 

2.  Hy  Acts  Tenn.,  1851-2,  ch.  292,  sec.  2,  the  charter  was  amended  so 
that  stockholders  should  not  be  required,  upon  subscribing,  to  pay  more 
than  one  per  cent,  of  their  subscriptions.     See,  also.  Acts  of  1851-2,  ch. 
285,  sec.    12,  which  alsc  amended  the  charter  so  that  the  acts  of  any 
three  commissioners  at  any  one  place  became  valid  without  concurrence 
of  whole  board. 

3.  By  Acts  1857-8,  ch.  60,  p.  128,  sec.  7,  the  company  was  given  the 
extra  time  of  two  years  in  which  to  get  the  stock  and  prepare  a  section 
for  the  iron. 

SEC.  4.  Deposit  of  money,  commissioners,  incorporation 

perfected,  When. — As  soon  as  the  time  for  receiving  subscrip- 
tions, as  aforesaid,  shall  have  expired,  the  said  commissioners 
shall,  respectively,  deposit  all  the  money  so  received  by  them 


84  ORIGINAL    CHARTER    NORTHWESTERN    BRANCH 

Depositor  in  some  incorporated  bank,  redeeming  its  notes  in 
money.  specie,  to  the  credit  of  the  Nashville  &  Northwestern 

Railroad  Company,  and  subject  to  the  order  of  the  president  of 
the  board  of  commissioners,  hereinafter  appointed,  and  shall 
also  furnish  a  correct  list  of  all  the  subscribers  to  said  stock, 
with  the  number  of  shares  each  subscriber  has  taken,  to  a  board 
of  commissioners  to  be  composed  of  the  following  persons: 
Thos.  Harding,  A.  W.  Vanleer,  -  —  Atkinson,  -  -  Newsom, 
B.  Collier,  Benj.  Robertson,  John  Wiley,  T.  B.  Gorin,  Thos. 
McNeilly,  T.  K.  Grigsby,  S.  Finley,  T.  Cooney,  J.  C.  Currier, 
Wm.  W.  Moody,  John  H.  Dunlap,  J.  C.  D.  Atkins,  J.  E.  R. 
Commis-  Ra.Y>  Em.  Etheridge,  J.  W.  Hays,  A.  G.  Holden, 
sioners.  p  Marberry,  W.  U.  Watkins,  Dr.  Head,  Col.  Wm. 

McCutchen,  Wm.  F.  Dougherty,  John  Wiley,  B.  B.  Spicer, 
T.  B.  Gorin,  S.  C.  Pavatt,  and  James  C.  Dunlap,  who  may 
establish  rules  to  govern  their  proceedings,  choose  their  own 
president,  and  appoint  such  other  officers  and  agents  as  they 
may  think  proper;  and  who,  or  a  majority  of  whom,  shall  meet 
at  Nashville  on  the  third  Monday  in  April  next,  to  ascertain 
the  whole  number  of  shares  taken  in  the  said  company,  and 
publish  the  same  in  some  newspaper  printed  in  Nashville,  on  or 
before  the  first  Monday  in  May  next,  and  if  the  number  of  one 
thousand  shares  shall  have  been  subscribed,  on  each  of  which 
there  shall  have  been  paid  the  sum  of  five  dollars,  the  Nash- 
ville &  Northwestern  Railroad  Company  shall  be  regarded  as 
incorporation  f°rmed,  and  thenceforth,  and  from  the  day  of  the 
perfected.  closing  of  the  books  of  subscription  as  aforesaid, 
the  said  subscribers  to  the  stock  shall  form  a  body  corporate 
and  politic,  in  deed  and  in  law,  by  the  name  and  for  the  pur- 
pose aforesaid,  and  in  all  things  to  be  represented  by  the  board 
of  commissioners  aforesaid,  until  the  board  of  directors  are 
elected,  as  hereinafter  prescribed. 

By  Acts  Term.,  1851-2.  ch.  285,  sec.  12,  this  charter  was  amended  so 
that  the  acts  of  any  three  commissioners  at  any  one  place  should  be  valid 
without  the  concurrence  of  all. 

SEC.  5.  Books  kept  open,  when;  incorporation,  commis- 
sioners.— If  on  closing  the  books  aforesaid,  the  number  of  one 


NASHVILLE,    CHATTANOOGA    <fe    ST.     LOUIS    RAILWAY. 

thousand  shares  shall  not  have  been  subscribed,  then,  and  in 
that  case,  the  said  board  of  commissioners,  bv  them-  , 

"  BOOKS  Kept 

selves  or  their  agents,  may  receive  subscriptions  un-  open- 
til  the  number  of  one  thousand  shares  be  taken;  and  whenever 
that  number  of  shares  shall  be  subscribed,  the  company  shall 
be  considered  as  formed,  as  having  a  corjKmite  existence  as 
aforesaid,  and  of  which  notice  shall  be  given  as  hereinbefore 
directed,  and  may  proceed  to  survey  the  route  for  the  road  and 
make  an  estimate  of  the  cost  of  its  construction;  nevertheless, 
no  conclusive  and  binding  location  of  the  road  shall  Commission. 
be  made  by  the  board  of  commissioners,  but  the  ers- 
same  may  l>e  left  to  the  determination  of  the  first  board  of  di- 
rectors chosen  by  the  stockholders.  And  the  said  board  of 
commissioners  may,  by  themselves  or  their  agents,  at  such 
times  and  places  as  they  may  think  proper,  and  upon  such 
terms  as  to  time  and  manner  of  payment  as  they  may  deem 
expedient,  receive  additional  subscriptions  until  the  numl>er  of 
ten  thousand  shares  shall  have  been  subscribed,  upon  which 
the  company  may  be  formed,  and  the  subscribers  Incorpora. 
shall  thenceforth  form  a  body  corporate  as  afore-  tlod- 
said;  Provided,  the  same  shall  be  done  on  or  Ixjfore  the  first 
day  of  January,  1858;  and  for  the  residue  of  the  original  num- 
ber of  thirty  thousand  shares  the  said  corporation,  when  organ- 
ized, may,  in  iike  manner,  receive  additional  subscriptions. 

SEC.  6.  Reduction  Of  Shares. — In  case  more  than  thirty 
thousand  shares  shall  have  been  subscribed  on  closing  the 
books,  when  they  are  first  opened,  the  shares  shall  l>e  reduced 
to  that  number  by  deducting  the  surplus  shares  from  the  high- 
est subscribers,  placing  them  on  equality  of  numbers  as  far  as 
can  be  done,  and,  after  such  reduction,  the  holders  of  the  re- 
maining shares  shall  form  the  company  and  be  interested  therein 
in  proportion  to  the  number  of  shares  which  they  may  then  re- 
spectively hold. 

SEC.  7.  Money  returned  if  shares  not  subscribed.— If,  on 

closing  the  books  on  the  first  day  of  January,  1858,  the  num- 
ber of  ten  thousand  shares  shall  not  have  l>een  subscribed,  the 
money  paid  by  each  subscriber  shall  be  returned  to  him  by  the 


86  ORIGINAL    CHARTER    NORTHWESTERN    BRANCH 

said  board  of  commissioners  after  paying  the  expenses  of  open- 
ing the  books  and  of  making  a  survey  and  map  of  the  route  and 
estimate  of  the  cost  of  the  road,  which  the  said  commissioners 
are  hereby  authorized  to  have  made  as  soon  as  practicable. 

SEC.  8.  President  and  directors,  how  chosen.— The  affairs 

of  said  company  shall  be  managed  by  a  board  of  directors,  to 
consist  of  fifteen,  and  who  shall  be  chosen  by  the  stockholders 
from  their  own  body,  and  a  president  of  the  company  shall  be 
elected  by  the  directors  from  their  own  numbers,  in  such  man- 
ner as  the  regulations  of  the  corporation  shall  prescribe. 

1.  This  section  was  affected  by  decree  of  chancery  court  at  Nashville 
May  14,  1872,  entered  in  minute  book  "  V,"  pp.  185-92,  so  that  the  affairs 
of  the  company  should  be  managed  by  the  directors  for  the  time  being 
of  the  Nashville  &  Chattanooga  Railroad  Company,  by  which  the  presi- 
dent, and  such  other  officers  as  may  be  determined  by  the  by-laws,  shall 
be  elected  or  appointed. 

2.  This  road  is  now  owned  by  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  whose  directors  control  it  as  a  part  of  its  system.    The  directors 
of  the  general  system  are  elected  under  the  charter  of  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  proper.     See  notes  to  sec.  8  of  that 
charter. 

SEC.  9.  Stockholders'  first  meeting,  directors  elected,  by- 
laws.— As  soon  as  the  number  of  one  thousand  shares  shall 
have  been  subscribed,  it  shall  be  the  duty  of  the  commissioners 
appointed  to  declare  the  same,  to  appoint  a  time  for  the  stock- 
holders to  meet  in  Nashville,  and  to  give  notice  thereof  by  pub- 
lication in  some  of  the  newspapers  in  Nashville,  at  which  time 
and  place  the  stockholders,  in  person  or  by  proxy,  shall  pro- 
ceed to  elect  the  directors  of  the  company  and  to  enact  all  such 
regulations,  rules,  and  by-laws  as  may  be  necessary  for  the 
government  of  the  corporation  and  the  transaction  of  its  busi- 
ness. The  persons  elected  directors  at  this  meeting  shall  serve 
for  such  period  not  exceeding  one  year  as  the  stockholders  may 
direct,  and  at  this  day  the  stockholders  shall  fix  on  the  day  the 
subsequent  election  of  directors  shall  be  held,  and  such  election 
shall  thenceforth  be  annually  made.  But  if  the  day  of  the 
annual  election  shall  pass  without  any  election  of  directors,  the 
corporation  shall  not  thereby  be  dissolved,  but  it  shall  be  law- 
ful on  any  other  day  to  hold  and  make  said  election  in  such 
manner  as  may  be  provided  by  a  by-law  of  the  corporation. 

See  notes  to  sections  8  and  9  of  the  charter  of  Nashville  &  Chattanooga 
Railroad  Company,  chapter  1,  herein. 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.  87 

SEC.  10.  Vacancies  in  board,  how  filled.— The  lx>ard  of  di- 
rectors may  fill  all  vacancies  which  may  occur  in  it  during  the 
period  for  which  their  hoard  Khali  have  been  elected,  and,  in  the 
nliM-nce  of  the  president,  may  till  his  place  by  electing  a  presi- 
dent pro  tempore. 

See  section  10  of  charter  of  Nashville  &  Chattanooga  Railroad  Com- 
pany, herein. 

SEC.  11.  Contracts  and  agreements  binding  without  seal. 

— All  contracts  and  arrangements  authenticated  by  the  presi- 
dent of  the  l>oard  shall  be  binding  on  the  company  without  seal, 
or  such  other  mode  of  authentication  may  be  used  as  the  com- 
pany, by  its  by-laws,  may  adopt. 

1.  This  section  was  amended  by  decree  of  chancery  court    May  14, 
1872,  entered  in  minute  book  "  V,"pp.  185-92,  at  Nashville,  so  as  to  read, 
"all  contracts,  authenticated  by  the  president  of  the  board  shall  be  bind- 
ing1 on  the  company  without  seal,  and  such  other  mode  of  authentication 
may  be  used  as  the  by-laws  may  prescribe." 

As  to  validity  of  chancery  court  charters,  however,  see  discussion 
herein;  see  index. 

2.  Deeds  require  seal. — Deeds  to  real  estate,  however,  were  required 
at  common  law  to  be  under  seal,  and  neither  the  above  section  nor  $  247S 
of  the  code  (M.  «fc  V.)  change  this  law.     The  seal,  in  such  cases,  must  be 
attached.     10  Pick.  (Tenn.),  4f>0. 

See  index  for  discussion  of  this. 

SEC.  12.  Liability  Of  directors. — The  board  of  directors 
shall  not  exceed,  in  their  contracts,  the  amount  of  the  capital 
stock  of  the  corporation,  and  of  the  funds  which  the  company 
may  have  borrowed  and  placed  at  the  disposal  of  the  board; 
and  in  case  they  shall  do  so  the  president  and  directors  who  may 
be  present  at  the  meeting  at  which  such  contract  or  contracts 
so  exceeding  the  amount  aforesaid  shall  be  made,  shall  be  jointly 
and  severally  liable  for  the  excess,  both  to  the  contract  or  con- 
tractors and  to  the  corporation;  Provided^  That  anyone  may 
discharge  himself  from  such  liability  by  voting  against  such 
contract  and  causing  such  vote  to  l>e  recorded  on  the  minutes 
.of  the  board  and  giving  notice  thereof  to  the  next  general 
meeting  of  the  stockholders. 

See  notes  to  sec.  12  of  Nashville  &  Chattanooga  Railroad  charter  for 
discussion  of  liability^  of  directors.  See,  also,  general  discussion  herein. 
Refer  to  index. 

SEC.  13.  Exclusive  transportation,  freight  charges.— The 

said  company  shall  have  the  exclusive  right  of  transportation  or 


88  ORIGINAL    CHARTER    NORTHWESTERN    BRANCH 

conveyance  of  persons,  goods,  merchandise,  and  produce  over 
said  railroad  by  them  to  be  constructed;  Provided,  That  the 
cost  of  transportation  or  conveyance  shall  not  exceed  thirty-five 
cents  per  hundred  pounds  on  heavy  articles,  and  ten  cents  per 
cubic  foot  on  articles  of  measurement,  for  every  hundred  miles, 
and  five  cents  a  mile  for  every  passenger;  And  provided  al»ot 
That  said  company  may,  when  they  see  fit,  farm  out  their 
rights  of  transportation  on  said  road,  subject  to  the  rates  above 
mentioned. 

1.  Amendment  by  chancery  court. — By  decree  of  chancery  court  at 
Nashville,  May  14,  1872,  minute  book   "V,"pp.  185-92,  this  section  was 
amended  so  as  to  read:  •'  Said  company  shall  have  the  exclusive  right  of 
transportation  or  conveyance  of  persons,  goods,  merchandise,  and  pro- 
duce over  the  railroad  by  it  controlled  and  managed  or  constructed." 
The  balance  was  identical  with  the  section  above. 

For  validity  of  this  amendment,  however,  see  discussion  herein  of 
chancery  court  amendments;  refer  to  index. 

2.  Rate  of  charge. — See  discussion  under  sec.  14  of  Nashville  &  Chat- 
tanooga Railroad  Company  charter  herein. 

3.  Exclusive  transportation. — See  notes  to  sec.    14   of   Nashville  & 
Chattanooga  Railroad  Company  charter  herein. 

SEC.  li.  Installments,  SUitS  for. — The  board  of  directors 
may  call  for  the  payment  of  ninety-five  dollars  on  each  share 
of  stock  in  sums  not  exceeding  ten  dollars  in  every  thirty  days; 
Provided,  That  twenty  days'  notice  be  given  of  such  call  in  at 
least  one  public  newspaper  of  the  state  in  which  any  of  the 
stockholders  may  reside,  and  a  failure  to  pay  or  secure  to  be 
paid,  according  to  the  rules  of  the  company,  any  of  the  install- 
ments so  called  as  aforesaid,  shall  induce  a  forfeiture  of  the 
share  or  shares  on  which  default  shall  be  so  made  and  all  pay- 
ments thereon,  and  the  same  shall  vest  in  and  belong  to  the 
company,  and  may  be  restored  to  the  owner  or  owners  by  the 
board  of  directors  if  they  deem  proper,  on  the  payment  of  all 
arrears, on  such  shares  and  legal  interest  thereon,  or  the  direc- 
tors may  waive  the  forfeiture  after  thirty  days'  default  and  sue 
the  stockholder  for  the  installments  due,  at  their  discretion. 

1.  The  legislature,  by  Act  1855-56,  ch.  2.  sec.   5,  released  the  stock- 
holders in  Henry  and  west  of  the  Mobile  <fe  Ohio  Railroad  from  their 
subscriptions  to  this  road. 

2.  By  Acts  1855-56,  ch.   104,   p.  117,  this  railroad  was  authorized  to 
issue  stock,  with  consent  of  Davidson  county  court,  to   taxpayers  for 
amount  of  annual  tax  paid  or  to  be  paid  by  them,  by  virtue  of  railroad 
bonds  issued  by  county  for  this  purpose. 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.  99 

SEC.  15.  StOCk,  hOW  transferred.— The  stock  of  said  com- 
pany may  be  transferred  in  such  manner  and  form  as  may  be 
directed  by  the  by-laws  of  said  corporation. 

Tliis  section  was  re-enacted  by  decree  in  chancery  court  at  Nashville, 
May  14,  1872,  sec.  »S,  minute  book  "  V,"  pp.  185-1*2,  in  amending  the  other 
sei'tions  of  the  charter. 

The  stock  in  the  Nashville,  Chattanooga  «&  St.  Louis  Railway  now 
represents  this  road,  as  well  as  all  others  forming1  the  system.  For 
method  of  stock  transfers  under  that  charter,  see  sec.  Ifi. 

SEC.  16.  Capital  increased,  hOW. — The  said  company  may, 
at  any  time,  increase  its  capital  to  a  sum  sufficient  to  complete 
said  road  and  stock  it  with  everything  necessary  to  give  it  full 
Operation  and  effect,  either  by  opening  books  for  new  stock  or 
by  selling  such  new  stock,  or  by  borrowing  money  on  credit  of 
the  company,  and  on  the  mortgage  of  its  charter  and  works, 
and  the  manner  in  which  the  same  shall  be  done  in  either  case 
shall  be  prescribed  by  the  stockholders  at  a  general  meeting; 
and  any  state  or  any  citizen,  corporation,  or  company  of  this 
or  any  other  state  or  country  may  subscribe  for  and  hold  stock 
in  said  company,  with  all  the  rights  and  subject  to  all  the 
liabilities  of  any  other  stockholder. 

1.  This  section  was  amended  by  decree  of  chancea-y  court  at  Nashville, 
May  14.   1872,  minute  book   "  V,"  pp.   185-92,  so  that  the  capital  stock 
could  be  increased  at  any  time  by  two-thirds  of  entire  number  of  di- 
rectors.    See  discussion  herein,  however,  as  to  validity  of  this,     liefer 
to  index. 

2.  The  above  section  of  the  original  charter  gave  the  company  only 
the  limited  power  to  issue  bonds  and  mortgage  its  property  to  rmnitletc 
and  c<jnii>  its  road,  and  for  no  other  purpose.     4  1'ick.  (Tenn.),  138. 

See  sec.  17  of  charter  of  Nashville  &  Chattanooga  Railroad  Company, 
ch.  1,  herein. 

SEC.  17.  Directors'  annual  report,  may  call  general  meet- 
ing.— The  board  of  directors  shall,  once  in  every  year  at  least, 
make  a  full  report  of  the  state  of  the  company  and  its  affairs  to 
a  general  meeting  of  the  stockholders,  and  oftener  if  directed 
by  a  by-law,  and  shall  have  power  to  call  a  general  meeting  of 
the  stockholders  when  the  board  may  deem  it  expedient. 

See  sec.  18  of  charter  of  the  Nashville  *  Chattanooga  Railroad,  herein. 

SEC.  18.  Qualification  of  officers  and  voters.— No  i>erson 

but  a  bona  fide  stockholder  in  his  own  right  of  at  least  ten 
shares,  which  he  shall  have  held  at  least  three  months  previous 
to  his  election  (except  the  first  election),  shall  be  president  or  a 


90  ORIGINAL    CHARTER    NORTHWESTERN    BRANCH 

director  of  the  company;  nor  shall  any  stockholder  vote  in  per- 
son or  by  proxy  at  any  general  or  other  election  (except  the 
first),  who  shall  not  have  held  in  his  own  right  the  shares  on 
which  he  offers  to  vote,  at  least  three  months  previous  to  such 
election. 

See  note  to  sec.  19  of  Nashville  &  Chattanooga  Railroad  Company 
charter  herein,  ch.  1. 

SEC.  19.  Method  and  scale  of  voting  for  directors.— Stock- 
holders may  vote  in  person  or  by  proxy,  and,  in  the  election 
of  directors  and  in  voting  on  all  questions  which  come  before  a 
meeting  of  the  stockholders,  or  which  may  be  submitted  to  the 
decision  of  the  stockholders  in  any  other  manner,  the  vote  shall 
be  taken  according  to  the  following  scale,  viz. :  Each  stock- 
holder shall  have  one  vote  for  each  share  he  owns;  Provided, 
That  no  individual,  corporation,  or  company  shall  be  entitled  to 
more  than  five  hundred  votes. 

1.  This  section  was  also  amended  by  decree  of  the  chancery  court  at 
Nashville,  May  14,  1872,  minute  book  V,  pp.  185-192,  so  as  to  read  as  fol- 
lows:  "Stockholders  may  vote  in  pei'son  or  by  proxy,  and,  in  voting  on 
all  questions  which  may  be  submitted  to  the  decision  of  the  stockhold- 
ers, each  stockholder  shall  be  entitled  to  one  vote  to  each  share  of  stock 
owned  by  him  or  her. 

2.  Previous  to  this  the  legislature,  by  Acts  1868-69,  ch.  2,  sec.  4,  had 
allowed  all  charters  to  be  amended  to  the  same  effect,  if  the  company 
desired. 

3.  No  elections  are  now  held  under  this  charter.     The  board  of  direc- 
tors of  the  whole  system  are  elected  and  all  corporate  business  trans- 
acted under  the  charter  of  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.    See  section  20  of  said  charter. 

SEC.  20.  Real  property  may  be  purchased  for  what.— That 

said  company  may  purchase,  have  and  hold  in  fee  or  for  a  term 
of  years,  any  lands,  tenements,  and  hereditaments  which  may 
be  necessary  for  said  road  or  appurtenances  thereof,  or  for  the 
erection  of  depositories,  storehouses,  houses  for  the  officers, 
servants,  or  agents  of  the  company,  or  for  workshops  or  foun- 
dries to  be  used  for  said  company,  or  for  procuring  timber, 
stones,  or  any  other  materials  necessary  for  the  construction  of 
the  road  or  its  appurtenances,  or  for  effecting  transportation 
thereon,  or  for  other  purposes. 

For  the  purposes  enumerated  in  the  above  section,  the  railway  cannot 
condemn,  but  must  rely  upon  its  purchasing  power  therein  conferred.  11 
Hum.,  347.  See  general  discussion  of  this  under  Eminent  Domain, 
herein:  refer  to  index. 


NASHVILLE,    CHATTANOOGA    A   8T.    LOUIS    RAILWAY.  91 

SEC.  21.  Crossing  roads  and  water  courses.— That  «aid 

company  shall  have  the  right,  when  necessary,  to  construct  the 
said  road,  or  any  branch  thereof,  across  or  along  any  public 
road  or  water  course;  Provided,  That  the  said  road  and  the 
navigation  of  such  water  course  shall  not  be  thereby  obstructed. 

1.  For  crossing-  of  Tennessee  river,  see  sec.  43  of  this  charter. 

2.  Where  the  railroad  crosses  public  roads  already  in   use,  it  must, 
unless  relieved  by  statute,  not  only  restore  the  public  road,  but  erect 
and  maintain  perpetually  all  structures,  and  keep  up  all  repairs  made 
necessary  by  such  crossing,  for  the  safety  and  convenience  of  the  pub- 
lic.    3  Pick.  (Tenn.),  712.     But  this  law  does  not  apply  where  a  public 
road  subsequently  crosses  the  railroad.     See  discussion  herein  of  this 
subject;  refer  to  index. 

3.  The  term  "  public  road  "  in  this  charter  does  not  embrace  the  streets 
and  alleys  of  a  city.     3  Head,  596. 

4.  The  temporary  and  necessary  obstruction  of  navigation  in  the  con- 
struction or  repair  of  a  bridge  is  not  unlawful  under  this  section,  nor 
within  the  prohibition  of  \  1527  of  the  Code  (M.  &  V.)  of  Tenn.;  0  Pick. 
(Tenn.),  638.     But  see  5  Sneed,  427;  1  Bax..  55. 

See  sec.  22  of  charter  of  Nashville  it  Chattanooga  Railroad  Company, 
herein. 

SEC.  22.  Purchase  Of  bridges,  roads,  etc.— The  said  com- 
pany may  purchase,  have  and  hold  any  bridge  or  turnpike  road 
over  which  it  may  be  necessary  to  pass,  and,  when  such  pur- 
chase is  made,  to  hold  the  said  bridge  or  turnpike  road  on  the 
same  terms  and  with  all  the  rights  which  belong  to  the  indi- 
vidual, individuals,  or  corporation  from  which  such  purchase 
may  be  made;  Provided,  That  the  said  company  shall  not  ob- 
struct any  public  road  without  constructing  another  as  con- 
venient as  may  be. 

1.  The  term,  "as  convenient  as  may  be,"  in  the  above  section,  does 
not  mean  that  the  new  road  must  be  as  convenient  and  easy  of  passage 
and  as  ftafc  as  the  old  road,  but  that  it  must  be  so  constructed  as  to  an- 
swer the  purposes  of  the  traveling-  public,  and  be  made  as  easy  and  con- 
venient as  the  nature  of  the  ground  will  permit,  having  regard  to  the 
rights  of  the  public,  and  not  requiring  unreasonable  outlays  of  money 
by  the  company.     1  Bax.  (Tenn.),  55. 

2.  This  section  was  amended  by  decree  of  the  chancery  court  at  Nash- 
ville, May  14,  1872,  minute  book  V,  pp.  185-192.  sec.  t».  so  as  to  read:  "The 
said  company  may  purchase,  have  and  hold  any  bridge  or  turnpike  or 
other  road  over  which  it  may  be  necessary  to  pass,  ami,  when  such  pur- 
chase is  made,  to  hold  the  said  bridge  or  turnpike  or  other  road  on  the 
same  terms  and  with  all  the  rights  which  belong  to  the  individual  or 
corporation  from  which  such  purchase  may  be  made. 

3.  As  to  validity  of  this,  see  discussion  of  chancery  court  amendments 
herein.     Refer  to  index.     See  sec.  23  of  Nashville  «!t  Chattanooga  Rail- 
road Company  charter,  herein.  4 

SEC.  23.  Condemnation  for  right  of  way.— Where  any 


92  ORIGINAL    CHARTER    NORTHWESTERN    BRANCH 

lands  or  rights  of  way  may  be  required  by  the  said  company 
for  the  purpose  of  constructing  their  road,  and  for  want  of 
?anditaken0r  agreement  as  to  the  value  thereof,  or  from  any 
tai™eadscer  other  cause,  the  same  cannot  be  purchased  from  the 
owner  or  owners,  the  same  may  be  taken  at  a  valuation  to  be 
made  by  five  commissioners,  or  a  majority  of  them,  to  be  ap- 
pointed by  the  circuit  court  of  the  county  where  some  part  of 
the  land  or  right  of  way  is  situated,  and  the  said  coinmis- 
By  sworn  com-  Si°ners5  before  they  act,  shall  severally  take  an  oath 
missioners.  before  some  justice  of  the  peace  faithfully  and  im- 
partially to  discharge  the  duty  assigned  them.  In  making 
said  valuation  the  commissioners  shall  take  into  consideration 

Commission-  the  loss  or  damage  which  may  occur  to  the  owner 
ers  to  consider  /.  ,  ,  , 

what.  or    owners    of    the    land     in    consequence    of    the 

land  being  taken  or  the  right  of  way  surrendered,  and  also  the 
benefit  and  advantage  he,  she,  or  they  may  receive  from  the 
erection  or  establishment  of  the  railroad  or  works,  and  shall 
state  particularly  the  nature  and  amount  of  each,  and  the  excess 
of  loss  and  damage,  over  and  above  the  benefit  and  advantage, 
shall  form  the  measure  of  valuation  of  the  said  land  or  right 
of  way.  The  proceedings  of  said  commissioners,  accompanied 
with  a  full  description  of  the  said  land  or  right  of  way,  shall 
be  returned  under  the  hands  and  seals  of  a  majority  of  the 
commissioners  to  the  court  from  which  the  commission  issued, 
there  to  remain  a  matter  of  "record.  In  case  either  party  to  the 
proceedings  shall  appeal  from  the  valuation  to  the  next  session 
of  the  court  granting  the  commission,  and  give  reasonable  notice 
to  the  opposite  party  of  such  appeal,  the  court  shall  order  a 
new  valuation  to  be  made  by  a  jury,  who  shall  be  charged 
therewith  in  the  same  term,  or  as  soon  as  practicable,  and  their 
verdict  shall  be  final  and  conclusive  between  the  parties  unless 
a  new  trial  shall  be  granted,  and  the  lands  or  right  of  way  so 
valued  by  the  commissioners  or  jury  shall  vest  in  the  said  con> 
pany  in  fee  simple,  so  soon  as  the  valuation  may  be  paid,  or 
when  refused,  may  be  tendered,  to  the  extent  of  two  hundred 
feet  wide.  Where  there  may  be  an  appeal,  as 
aforesaid,  from  the  valuation  of  the  commissioners 


NASHVILLE,    CHATTANOOGA    A    ST.     LOl'IS    RAILWAY.  93 

of  either  of  the  parties,  the  siune  shall  not  prevent  the  works 
intending  to  IK»  constructed  from  proceeding,  but  where  the 
appeal  is  by  the  company  requiring;  the  surrender,  they  shall 

be  at  liberty  to  proceed  with  their  works  only  on  ., 

«*         worK  TO  pro- 
condition  of  giving  to  the  opposite  party  a  bond  ceed-bow- 

with  good  security,  to  be  approved  by  the  clerk  of  the  court 
where  the  valuation  is  returned,  in  a  penalty  equal  to  double 
the  said  valuation,  and  interest,  in  case  the  same  be  sustained: 
and,  in  case  it  be  reversed,  for  the  payment  of  the  valuation 
thereafter  to  be  made  by  the  jury  and  confirmed  by  the  court: 
Provided)  That  when  the  land  cannot  be  had  by  gift  or  pur- 
chase, the  operations  of  the  work  are  not.  to  be  hindered  or 
delayed  during  the  pendency  of  any  proceeding  to  assess  its 
value  as  aforesaid,  nor  shall  any  injunction  or  siq>ersedeas  be 
awarded  by  any  judge  or  court  to  delay  the  progress  of  said 
work. 

1.  The  Nashville,  Chattanooga  »fc  St.  Louis  Railway  having  purchased 
all  the  property,  rights,  franchises,  privileges,  and  immunities  of  this 
company,  it  has  fallen  heir  to  all  the  rights  of  this  and  the  succeeding 
section.     Hence,  if  the  right  of  way  of  this  company  was  not  originally 
paid  for  by  it,  and  there  is  no  contract  with  the  landowner  to  the  con- 
trary, the  Nashville,  Chattanooga  &  St.  Louis  Railway,  as  the  owner  of 
this  branch,  would  now  bt  entitled  to  one  hundred  feet  on  each  side  of 
center  of  track  when  necessary  for  railroad  purposes.     .">  1'ick.,  293. 

2.  Land  may  be  condemned  on  this  branch  for  ni>i>r<m<-hcft  to  road  for 
persons  and  vehicles,  and   for  places  for  receiving,  delivering,  loading, 
and  unloading  goods,  merchandise,  etc.,  but  not  for  land  for  the  purpose 
of  depositories,  storehouses,  workshops,  and  houses  for  agents,  etc.      11 
Hum.,  347. 

3.  See  general  discussion  herein  under  Eminent  Dntmiin.     See,  also, 
notes  to  sec.  24  of  charter  of  Nashville  «.t  Chattanooga  Railroad  Company 
herein,  ch.  1. 

SEC.  24.  In  absence  of  contract,  right  of  way  one  hundred 

feet,  when.—  In  the  absence  of  any  contract  with  the  said  com- 
pany in  relation  to  lands  through  which  the  said  road  may  pass, 
signed  by  the  owner  thereof,  or  by  his  agent,  or  any  claimant  or 
person  in  possession  thereof,  which  may  l>e  confirmed  by  the 
owner,  it  shall  be  presumed  that  the  land  upon  which  the  road 
may  be  constructed,  together  with  a  space  of  one  hundred  feet 
on  each  side  of  the  center  of  said  road,  has  l>een  granted  to  the 
company  by  the  owner  thereof,  and  the  said  company  shall  have 
good  right  and  title  thereto,  and  shall  have,  hold,  and  enjoy  the 
same  as  long  as  the  same  be  used  only  for  the  purj^ses  of  the 


94r  ORIGINAL    CHARTER    NORTHWESTERN    BRANCH 

road,  and  no  longer,  unless  the  person  or  persons  owning  the 
said  land  at  the  time  that  part  of  the  road  which  may  be  on 
said  land  was  finished,  or  those  claiming  under  him,  her,  or 
them,  may  apply  for  an  assessment  for  the  value  of  said  lands 
as  hereinafter  directed,  within  five  years  next  after  that  part  of 
said  road  was  finished,  and,  in  case  the  said  owner  or  owners, 
or  those  claiming  under  him,  her,  or  them,  shall  not,  within 
five  years  after  the  said  part  was  finished,  apply  for  such  as- 
sessment, he,  she,  or  they  shall  be  forever  barred  from  recover- 
ing the  said  land  or  having  any  assessment  or  compensation 
therefor;  Provided,  Nothing  herein  contained  shall  affect  the 
rights  of  femes  covert  or  infants  until  two  years  after  the  re- 
moval of  their  respective  disabilities. 

For  discussion  of  this  section,  see  notes  to  section  25  of  the  charter  of 
the  Nashville  «fe  Chattanooga  Railroad  Company.  The  two  sections  are 
the  same.  See,  also,  general  discussion  herein  under  Eminent  Domain. 
Refer  to  index.  The  Nashville,  Chattanooga  &  St.  Louis  Railway,  in 
purchasing-  this  road,  acquired  all  the  rights  and  privileges  of  this  sec- 
tion. 

SEC.  25.  Forfeiture  and  penalty  for  intrusion.— if  any  per- 
son shall  intrude  upon  the  said  railroad,  or  any  part  thereof, 
by  any  manner  of  use  thereof,  or  of  the  rights  and  privileges 
connected  therewith,  without  the  permission  or  contrary  to  the 
will  of  said  company,  he,  she,  or  they  shall  forthwith  forfeit  to 
the  said  company  all  the  vehicles  that  may  be  intruded  on  said 
road,  and  the  same  may  be  recovered  by  suit  at  law,  and  the 
person  or  persons  so  intruding  may  also  be  indicted  for  misde- 
meanor, and,  upon  conviction,  fined  and  imprisoned  by  any 
court  of  competent  jurisdiction. 

This  section  was  re-enacted  by  decree  of  chancery  court  at  Nashville, 
May  14,  1872,  sec.  12.  minute  book  "V,"'  pp.  185-192,  in  amending  the 
other  sections  of  the  charter. 

As  to  the  misdemeanor,  see  3  Hum.,  481-483. 

SEC.  26.  Obstructing  or  damaging  road  or  bridge,  punish- 
ment.— If  any  person  shall  willfully  or  maliciously  destroy,  or 
in  any  manner  hurt,  damage,  or  obstruct  the  said  railroad  or 
any  bridge  or  any  vehicle  used  for  or  in  the  transportation 
thereon,  such  person  or  persons  so  offending  shall  be  liable  to 
be  indicted  therefor,  and,  on  conviction,  shall  be  imprisoned 
not  more  than  six  nor  less  than  one  month  and  pay  a  fine  of  not 


NASHVILLE,    CHATTANOOGA    <fc    ST.    LOUIS    RAILWAY.  '.'."• 

less  than  twenty  dollars,  and  shall  be  further  liable  to  pay  all 
the  expenses  of  repairing  the  same,  and  it  shall  not  be  compe- 
tent for  any  person  so  offending  against  the  provisions  of  this 
charter  to  defend  himself  by  pleading  or  giving  in  evidence  that 
he  was  the  owner  or  agent  or  servant  of  the  owner  of  the  land 
where  such  destruction,  hurt,  damage,  injury,  or  obstruction 
was  done  or  caused  at  the  time  the  same  was  caused  or  done. 

Subsequent  legislation  has  rendered  this  section  of  the  charter  un- 
necessary if  not  inoperative.  See  notes  to  section  27  of  the  charter  of 
the  Nashville  «fc  Chattanooga  Railroad  Company,  chapter  1,  herein.  The 
sections  are  the  same,  and  hence  notes  are  here  omitted. 

SEC.  27.  Obstruction  a  public  nuisance.— Every  obstruction 
to  the  safe  and  free  passage  of  vehicles  on  the  said  road  shall 
be  deemed  a  public  nuisance,  and  may  be  abated  as  such  by  an 
officer,  agent,  or  servant  of  the  company,  and  the  person  caus- 
ing such  obstruction  may  be  indicted  and  punished  for  erecting 
a  public  nuisance. 

The  word  "obstruction,"  as  used  by  railroad  men,  is  not  a  term  of 
art  as  requires  explanation  by  an  expert.  G  Heis.,  347.  See.  also,  3 
Head,  522;  1  Kax.,  55. 

SEC.  28.  Storage  Charges  allowed,  When.— The  said  com- 
pany shall  have  the  right  to  take,  at  the  storehouses  they  may 
establish,  or  next  to  their  railroad,  all  goods,  wares,  merchan- 
chandise,  or  produce  intended  for  transportation,  prescribe  the 
rules  of  priority,  and  charge  and  receive  such  just  and  reason- 
able compensation  for  storage  as  they,  by  rules,  may  establish, 
which  they  shall  cause  to  Ire  published,  or  as  may  be  fixed  by 
agreement  with  the  owner,  which  may  be  distinct  from  the 
rates  of  transportation;  I  *roi<  idt.il,  That  the  said  company  shall 
not  charge  or  receive  storage  on  goods,  wares,  or  produce 
which  may  bo  delivered  to  them  at  their  regular  depositories 
for  immediate  transportation,  and  which  the  company  may 
have  no  power  of  transj)orting  immediately. 

See  notes  to  sec.  29  of  the  charter  of  the  Na-shville  «fe  Chattanooga 
Railroad  Company,  chap.  1,  herein. 

SEC.  2!>.  Dividends,  paid  When. — The  profits  of  the  com- 
pany, or  so  much  thereof  as  the  l>oard  of  directors  may  deem 
advisable,  shall,  when  the  affairs  of  the  company  will  permit. 


96  ORIGINAL    CHARTER    NORTHWESTERN    BRANCH 

be  semiannually  divided  among  the  stockholders  in  proportion 
to  the  stock  each  may  hold. 

See  notes  to  sec.  31  of  the  charter  of  the  Nashville  &  Chattanooga 
Railroad  Company,  herein.  Dividends  are  now  paid  under  the  charter 
and  by-laws  of  that  company. 

SEC.  so.  Banking  prohibited,  may  insure.— The  said  com- 
pany is  hereby  expressly  prohibited  from  carrying  on  any 
banking  operation,  but  may  effect  insurance  on  lives  and  prop- 
erty transported  on  the  road. 

See  notes  to  sec.  31  of  the  charter  of  the  Nashville  &  Chattanooga 
Railroad  Company,  chap.  1.  herein. 

SEC.  31.   Crossings  Of  roads  and  lands.— Wherever,  in  the 

construction  of  said  road,  it  shall  be  necessary  to  cross  or  in- 
tersect any  established  road  or  way,  it  shall  be  the  duty  of  the 
company  to  construct  said  road  across  such  established  road  or 
way  as  not  to  impede  the  passage  or  transportation  of  persons 
or  property  along  the  same;  or  where  it  shall  be  necessary  to 
pass  through  the  land  of  any  individual,  it  shall  be  their  duty 
to  provide  for  such  individual  a  proper  wagon  way  or  ways 
across  said  road  from  one  part  of  his  road  to  the  other. 

See  notes  to  sec.  32  of  the  charter  of  the  Nashville  &  Chattanooga 
Railroad  Company.  The  two  sections  are  the  same. 

SEC.  32.  Additional  powers. — The  said  company  shall  pos- 
sess such  additional  powers  as  may  be  convenient  for  the  due 
and  successful  execution  of  the  powers  granted  in  this  charter 
and  for  the  successful  construction  and  management  of  the 
work. 

See  notes  to  section  33  of  charter  of  Nashville  &  Chattanooga  Rail- 
road Company,  herein. 

SEC.  33.  Exemption  from  military,  jury,  and  road  duty.— 

The  president,  directors,  clerks,  agents,  officers,  and  servants 
of  said  company  shall  be  exempt  from  military  duty,  except  in 
cases  of  invasion  or  insurrection,  and  shall  also  be  exempt  from 
serving  on  juries  and  working  on  public  roads. 

This  is  class  legislation  and  unconstitutional.  4  Lea,  316;  91  Ala.,  70; 
53  A.  &  E.  R.  R.  Cases,  37. 

SEC.  34.  Slaves,  power  tO  buy.— The  company  shall  have  full 
power  and  authority  to  purchase  and  own  such  number  of  slaves 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.  97 


l>e  necessary  for  the  construction  of  said  road  and  for 
keeping  the  same  in  repair. 

Slavery  abolished  by  constitution  of  1870. 

SEC.  35.  Directors  trustees  on  dissolution.—  If,  by  decree 

or  otherwise,  the  said  corporation  shall  be  dissolved,  the  pres- 
ident and  directors  of  sai.l  company  are  created  trustees,  with 
such  |M)wers  only  as  may  be  necessary  to  collect  the  debts  due 
the  company,  preserve  the  property,  pay  the  debts,  and  dis- 
tribute the  property  and  effects  of  the  company  to  those  who 
may  be  entitled  thereto  under  the  charter. 

This  company  is  now  dissolved,  though  its  rights.  privileges,  fran- 
chi*i-s.  and  immunities  belong  to  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  and  are  exercised  by  it.  See  sec.  37  of  charter  of  that  com- 
pany, herein. 

SEC.  36.  Exemption  from  taxation.—  The  capital  stock  of 
said  company  shall  be-  forever  exempt  from  taxation,  and  the 
road,  with  all  its  fixtures  and  appurtenances,  including  work- 
shops, warehouses,  and  vehicles  of  transportation,  shall  be 
exempt  from  taxation  for  the  period  of  twenty  years  from  the 
completion  of  the  road,  and  no  longer. 

1.  The  Nashville,  Chattanooga  &  St.  Louis  Railway,  having  purchased 
this  road  under  proceedings  instituted  by  the  state,  the  immunity  from 
taxation  passed  to  it  by  the  sale,  as  well  as  all  its  other  rights,  privileges, 
franchises,  and  immunities.     12  Lea,  583;  117  U.  S.,  833. 

2.  Exemptions  from  taxation  in  charters  prior  to  the  constitution  of 
1870.  and  accepted  by  the  corporators  and  acted  upon,  is  a  contract  bind- 
ing upon  the  state,  which  cannot  be  impaired.     2  Pick..  614;  13  Lea,  400; 
'.i  llnx.,  442;  3  Pick.,  155;  8  Bax.,  539;  80  U.  S.,  568;  87  U.  S.,  282;  83  U.  S., 
320;  117  U.  S.,  129. 

SEC.  37.  Road  tO  be  completed,  When.—  The  railroad  author- 
ized by  this  act  shall  be  commenced  within  three  years  after 
the  passage  of  this  act,  and  shall  be  finished  within  ten  years 
thereafter,  otherwise  the  charter  hereby  granted  shall  be  void. 

1.  This  section  was  amended  by  Acts  Tenn.,  1853-54,  ch.  312,  sec.  2,  so 
as  to  allow  the  company  three  years  from  the  passage  of  the  act  to  com- 
mence their  work,  and  four  years  from  the  passage  of  the  act  to  complete 
a  section  of  thirty  miles,  ready  to  receive  the  iron  rails,  and  that  the 
company  should  receive  the  state  aid  as  provided  by.  the  act  of  February 
11,  1852,  entitled  "An  act  to  establish  a  system  of  internal  improvement 
in   this  state,"  provided  the  road  should  be  located  through  Dickson 
county. 

2.  By  Acts  Tenn.,  1853-54,  ch.  132,  sec.  7,  the  railway  was  given  four 
years  to  complete  the  first  thirty  miles  of  said  road,  as  provided  by  act 
of  February  11,  1852. 


98  ORIGINAL    CHARTER    NORTHWESTERN    BRANCH 

By  Acts- 1857-58,  ch.  60,  p.  128,  sec.  7,  the  company  was  granted  an 
additional  two  years  in  which  to  g-et  the  stock  and  prepare  a  section  for 
the  iron. 

SEC.  38.  Branches,  who  may  build,  duty  of  this  road  as  to. 

—Any  individual  or  individuals,  company  or  body  corporate, 
with  permission  of  the  legislature  of  this  state,  may  hereafter 
construct  branches  to  connect  with  the  Nashville  &  Northwest- 
ern Railroad,  and  it  shall  be  the  duty  of  said  company,  when 
required,  to  receive  on  their  road  the  full  loaded  freight  cars 
from  such  branches  and  transport  the  same  to  their  destina- 
tion, and  to  return  them  without  changing  the  loads  thereof 
or  charging  for  the  goods,  wares,  merchandise,  and  produce 
therein  any  greater  rate  of  freight  than  they  charge  for  simi- 
lar goods,  wares,  merchandise  and  produce  in  their  own  cars; 
Provided,  That  the  company  shall  not  be  compelled  to  receive 
said  cars  on  their  road  unless  they  are  constructed  in  the  same 
manner  and  are  of  equal  strength  with  their  own  cars,  of  which 
the  engineer  of  the  main  road  shall  be  the  judge;  And  provided^ 
That  the  company  shall  not  be  required  to  receive  any  car  from 
such  branches  without  receiving  payment  for  at  least  twenty 
miles  transportation;  And  provided  aho,  That  the  said  com- 
pany shall  be  entitled  to  similar  and  equal  privileges  on  such 
branches  constructed  to  unite  with  their  road  with  the  same  re- 
straints. 

1.  See  notes  to  section  40  of  the  charter  of  the  Nashville  &  Chatta- 
nooga Railroad  Company,  herein. 

2.  By  Acts  1865-66.  ch.  91,  p.  274.  this  company  was  allowed  to  build 
a  branch  road  from  Huntingdon  to  the  Mississippi  Central  &  Tennessee 
and   the   Mobile  &  Ohio  railroads.     For  terms  and  conditions,  see  act 
itself  in  chapter  following. 

SEC.  39.  First  election,  number  of  directors,  by-laws.— 

That  the  board  of  commissioners  of  the  Nashville  &  North- 
western Railroad  is  hereby  authorized  and  empowered  to  ap- 
Numberof  P°int  three  judges  and  two  clerks  for  the  purpose  of 

holding  an  election  for  fifteen  directors  of  said  com- 
pany, and  upon  the  certificate  of  said  judges  the  said  directors 
shall  be  authorized  to  qualify  as  directors,  and  to  make  all 
Rules  and  ru^s,  regulations,  and  by-laws  necessary  for  the 

government  of  said  company  and  the  management  of 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.  99 

its  affairs,  and  not  inconsistent  with  the  general  laws  of  the 
land. 

SEC.  40.  Judges  and  clerks  of  election,  how  appointed.— 

That  the  lx>ard  of  directors  of  said  company  shall  have  power 
to  appoint  three  judges  and  two  clerks,  from  year  to  year,  for 
the  purpose  of  holding  an  election  for  directors. 

The  charter  of  the  Nashville  &  Chattanooga  Railroad  Company  now 
controls  this. 

SEC.  41.  Dividends  before  completion,  how  paid.— That  the 

said  company  be  required  to  estimate  and  credit,  semiannually, 
to  the  several  holders  thereof,  a  sum  equal  to  six  per  centum 
per  annum  on  the  capital  stock  of  said  company  actually  paid 
in,  to  be  charged  to  the  cost  of  construction  until  the  road  opens 
for  business,  provided  a  majority  of  the  stockholders,  at  their 
first  regular  meeting,  agree  thereto. 

SEC.  42.  Work  tO  Commence  Where. — That  when  a  sufficient 
portion  of  the  stock  of  the  company  is  taken  to  commence 
work  on  said  road  that  the  work  be  commenced  at  the  same 
time  at  Nashville  and  at  the  Mississippi  River,  and  that  the 
work  be  thus  continued  until  said  road  be  completed. 

This  section  was  amended  by  Acts  Tenn.,  1853-4,  ch.  312,  sec.  1,  so  as 
to  read  as  follows:  "That  the  president  and  board  of  directors  of  the 
Nashville  «fe  Northwestern  Railroad  Company  may  commence  the  work 
on  said  road  where  it  intersects  the  Mobile  «&  Ohio  Railroad,  in  Obion 
county,  Tennessee,  at  the  point  where  the  cheapest  and  most  practicable 
route  to  the  Madrid  Bend  will  strike  said  Ohio  «fe  Mobile  Railroad,  to  be 
ascertained  by  a  sworn  engineer,  and  prosecute  their  work  eastwardly 
from  that  point,  instead  of  commencing1  on  the  Mississippi  River,  as 
required  in  the  fortj'-second  section  of  their  charter,  and  also  on  both 
banks  of  the  Tennessee  River,  if,  in  the  opinion  of  the  board  of  directors, 
it  is  expedient  to  do  so;  Provided,  That  no  call  shall  be  made  on  the  stock- 
holders residing  west  of  the  Mobile  &  Ohio  Railroad  until  that  part  of 
the  Nashville  «fe  Northwestern  Railroad  lying  west  of  the  Mobile  &  Ohio 
Railroad  is  under  contract;  And  provltled  further,  That  this  amendment 
shall  not  be  binding  upon  the  company  or  become  a  part  of  its  charter 
until  the  same  is  ratified  at  a  general  meeting  of  the  stockholders  in  said 
company  [called  for  the  purpose  by  order  of  the  board  of  directors]  by 
a  vote  of  a  majority  in  the  interest  of  the  stockholders,  counting  the 
votes  according  to  the  basis  fixed  in  the  charter  of  said  company  in  the 
election  of  directors." 

SEC.  43.  Bridge  across  Tennessee  river,  how  constructed. 

That  in  the  construction  of  a  bridge  across  the  Tennessee  river, 
for  the  purpose  of  avoiding  any  interference  with  the  naviga- 
tion of  said  river,  it  shall  be  the  duty  of  said  company  to  build 


100        ACTS    AMENDING    CHARTER    NORTHWESTERN    BRANCH 

said  bridge  at  least  thirty  feet  above  extreme  high  water  mark, 
between  any  two  piers  the  company  may  deem  best,  and  the 
distance  between  the  two  so  selected  shall  be  at  least  one  hun- 
dred and  fifty  feet,  so  as  to  afford  free  and  safe  passage  for  all 
size  boats.  (Acts  1851-52,  ch.  74;  passed  January  22,  1852.) 

1.  This  section  was  amended  b3>-  Acts  Tenn. ,  1853-54,  ch.  312,  sec.  3,  so 
as  to  allow  the  company  to  construct  a  drawbridge  across  the  Tennessee 
river,  so  as  not  to  obstruct  the  free  navigation  of  said  river. 

2.  Congress  acts.— Uy  acts  of  congress,  1888  and  1890,  the  determina- 
tion of  the  character  of  bridges,  etc.,  over  all  luivkjnble  streams  has  been 
taken  from  the  state  legislatures.     Prior  to  this  time,  congress  had  no 
jurisdiction  over  the  navigable  waters  within  the  territorial  limits  of  a 
state,  as  there  was  no  common  law  of  the  United  States  independent  of 
statute.     Until  congress  acted,  therefore,  the  matter  rested  with   the 
state.     Hence,  the  above  acts.    Since  congress  has  taken  charge,  how- 
ever, these  state  acts  are  of  no  particular  value.     The  bridge  must  be 
constructed  according  to  the  acts  of  congress,  which  it  now  is. 

3.  For  method  of  procedure  in  building  or  repairing  bridges  over  nav- 
igable streams,  under  act  of  congress,  see  herein.     Refer  to  index. 


CHAPTER  IV. 

ACTS  AND  DECREES  AMENDING  CHARTER  OF,  AND  RELATING 

TO,  THE  NASHVILLE  <fr   NORTHWESTERN  RAILROAD 

COMPANY  IN  TENNESSEE  AND  KENTUCKY. 

ACTS  OF  TENNESSEE  AMENDING  CHARTER. 

1.  Charter  amended,  stockholders  not  to  pay  more  than  one 
per  cent,  of  subscription,  when. 

SEC.  2.  Be  it  further  enacted,  That  the  charter  of  the  Nash- 
ville &  Northwestern  Railroad  Company  shall  be  so  amended 
that  the  stockholders  shall  not  be  required,  upon  subscribing, 
to  pay  more  than  one  per  cent,  of  their  subscriptions,  and  not 
that  unless  required  by  the  commissioners.  (Acts  Tenn. ,  1851-2, 
ch.  292,  sec.  2;  passed  February  27,  1852.) 

This  was  re-enacted  during  the  same  sitting  of  the  legislature,  with 
the  addition  that  '•  the  acts  of  any  three  of  the  commissioners  at  any  one 
place  may  be  valid  without  the  concurrence  of  the  whole  board.  Acts 
1851-2,  ch.  285,  sec.  12;  passed  February  28,  1853. 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         101 

2.  Charter  amended;  may  build  branch  road  from  Huntingdon 

to  Jackson;  franchises,  right  of  way  of  branch. 

SECTION  1.  Be  it  enacted  by  t/te  General  Asxenibly  of  the 
State  of  Tennessee,  That  the  Nashville  &  Northwestern  Railroad 
Company  he,  and  is  hereby,  authorized  to  construct  a  branch 
road  from  the  town  of  Huntington,  in  Carroll  county,  to  a  con- 
nection with  the  Mississippi  Central  &  Tennessee  and  the  Mo- 
bile &  Ohio  Railroad,  at  the  town  of  Jackson,  or  with  the 
Memphis  &  Ohio  Railroad,  or  at  any  point  the  company  may 
determine  and  elect,  in  Madison  county. 

SEC.  2.   That  in  the  construction  of   said  branch  road    the 
Nashville  &  Northwestern  Railroad  Company  shall  Powersof 
be  entitled  to  all  the  rights  and  benefits  conferred  branch  road- 
upon  the  Mississippi  Central  and  Tennessee  Company  by  the 
seventh  section  of  an  act  passed  February  8,  1854,  ch.  131. 

SEC.  3.  That  in  securing  the  right  of  way  for  said  branch 
road,  constructing  the  roadbed  and  bridges,  and  erecting  depots 
and  other  necessary  buildings,   and  operating  the  Construct|0n 
same,  the  said  Nashville  &  Northwestern  Railroad  etc 
Company  shall  be  entitled  to  all  the  rights,  powers,  and  priv- 
ileges, and  subject  to  all  the  liabilities  and  restrictions  provided 
and  imposed  in  its  original  charter  for  the  regulation  of  its 
main  lino  of  road. 

SEC.  4.  That  this  company  shall  be  subject  to  such  general 
laws  as  now  or  may  hereafter  be  enacted  for  the  government  of 
railroad  companies.  (Acts  Tenn.,  1S65-6,  ch.  91,  p.  274; 
passed  May  22,  186*5. 

3.  Charter  amended ;  allowed  to  commence  work  where  and 

how;  time  to  complete  extended;  drawbridge  across 
Tennessee  river  allowed ;  subscriptions  for  stock  in  reg- 
ulated. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the 
State  of  Tennessee,  That  the  forty-second  section  of  an  act  en- 
titled "An  act  to  charter  the  Nashville  &  Northwestern  Rail- 
road," passed  January,  1852,  be  so  amended  as  to  read  as  fol- 
lows: That  the  president  and  board  of  directors  of  the  Nashville 
&  Northwestern  Railroad  Company  may  commence  the  work 


102        ACTS    AMENDING    CHARTER    NORTHWESTERN    BRANCH 

on  sa*(l  roa(*  wnere  ^  intersects  the  Mobile  &  Ohio 


May  commence 

work  where.     Railroad,  in  Obion  county,  Tennessee,  at  the  point 

where  the  cheapest  and  most  practicable  route  to  the  Madrid 
bend  will  strike  said  Ohio  &  Mobile  Railroad,  to  be  ascertained 
by  a  sworn  engineer,  and  prosecute  their  work  eastwardly  from 
that  point,  instead  of  commencing  on  the  Mississippi  river,  as 
required  in  the  forty  -second  section  of  their  charter,  and  also 
on  both  banks  of  the  Tennessee  river,  if,  in  the  opinion  of  the 
board  of  directors,  it  is  expedient  to  do  so;  Provided,  That  no 
call  shall  be  made  on  the  stockholders  residing  west  of  the 
Mobile  &  Ohio  Railroad  until  that  part  of  the  Nashville  & 
North  western  Railroad  lying  west  of  the  Mobile  &  Ohio  Rail- 
road is  under  contract;  And  provided  further,  That  this 
amendment  shall  not  be  binding  on  the  company  or  become  a 
part  of  its  charter  until  the  same  is  ratified  at  a  general  meet- 
ing of  the  stockholders  in  said  company  (called  for  the  purpose 
by  order  of  the  board  of  directors),  by  a  vote  of  a  majority  in 
the  interest  of  the  stockholders,  counting  the  votes  according 
to  the  basis  fixed  in  the  charter  of  said  company  in  the  election 
of  directors. 

SEC.  2.  That  the  thirty-seventh  section  of  an  act  entitled 
"An  act  to  incorporate  the  Nashville  &  Northwestern  Railroad 
Extension  Company,"  passed  January  22,  1852,  ch.*74,  be 
so  amended  as  to  allow  said  railroad  company  three 
years  from  the  passage  of  this  act  to  commence  their  work, 
and  four  years  from  the  passage  of  this  act  to  complete  a  sec- 
tion of  "thirty  miles"  ready  to  receive  the  iron  rails,  and 
that  said  company  shall  receive  the  state  aid  as  provided  by  the 
act  of  February  11,  1852,  entitled  "An  act  to  establish  a  sys- 
tem of  internal  improvements  in  this  state;  "  Provided,  That 
the  Nashville  &  Northwestern  Railroad  shall  be  located  through 

c^ 

Dickson  county. 

SEC.  3.   That  the  forty-third  section  of  the  charter  of  the 

Nashville  &  Northwestern  Railroad  Company  be  so 
Bridge.  J 

amended  as  to  allow  said  company  to  construct  a 

drawbridge  across  the  Tennessee  river,  so  as  not  to  obstruct 
the  free  navigation  of  said  river. 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         103 

SEC.  4.  That  the  said  company  be,   and  they  are  hereby, 
allowed  to  receive  subscriptions  for  three-quarters,   Fractlons 
half,  and  quarter  shares  of  stock,  and  issue  certiti-  of  stock- 
cates  for  such  fractional  shares  of  stock.     (Acts  Tenn.,  1853-4, 
ch.  312;  passed  February  1,  1854.) 

4.  Charter  amended,  fixing  western  terminus;  may  purchase 
or  lease  Hickman  &  Obion  Railroad,  how,  or  buy  stock 
in;  stockholders  in  Henry  county  and  west  of  Mobile 
&  Ohio  provided  for. 

SECTION  1.  Be  it  enacted  by  the  General  Aweinldy  of  the  State 
of  Tenntswe,  That  the  charter  of  the  Nashville  &  Northwestern 
Railroad  Company  be,  and  the  same  is  hereby,  so  amended  as 
to  fix  the  western  terminus  of  said  road  at  the  point  of  its  in- 
tersection with  the  Mobile  &  Ohio  Railroad. 

SEC.  2.  That  the  said  Nashville  &  Northwestern  Railroad 
Company  is  hereby  authorized  to  purchase  the  Hickman  & 
Obion  Railroad  *  or  three-fourths  of  the  stock  in  . 

Purchase  or 

said  company,  and  obtain  a  lease  of  said  road  for  {5Sn 
a  period  of  not  less  than  one  thousand  years,  and  R*nro»d- 
operate  it  as  their  own  railroad,  on  such  terms  as  the  said  two 
companies  may  agree  on,  and  that  said  Hickman  &  Obion  Rail- 
road Company  is  hereby  authorized  and  empowered  to  make 
such  sale  and  transfer  Or  lease. 

SEC.  3.  That  whenever  the  Nashville  &  Northwestern  Rail- 
road Company  shall  have  purchased  said  Hickman  &  Obion  Rail- 
road Company,  or  three-fourths  of  its  stock,  and  taken  a  lease 
of  said  road  for  not  less  than  a  thousand  years,  and  graded  and 
bridged  a  section  of  thirty  miles  from  the  Mississippi  river  at 
Hickman  eastwardly,  on  a  section  extending  from  said  river  to 
Dresden,  and  provided  the  cross-ties  for  the  same,  the  coupon 
bonds  of  the  State  of  Tennessee  shall  issue  to  the  Nashville  & 
Northwestern  Railroad  Company  at  the  rate  of  ten  thousand 
dollars  per  mile  on  so  much  of  said  section  as  may  lie  within 
this  state,  on  the  same  terms  and  conditions  in  all  other  respects 
as  stute  bonds  are  issued  to  other  railroad  companies  under  the 
internal  improvement  laws  of  this  state. 

SEC.  4.  That  whenever  said  Nashville  &  Northwestern  Rail- 


10-4        ACTS    AMENDING    CHARTER    NORTHWESTERN    BRANCH 

road  Company  shall  have  graded  and  bridged  an  additional  sec- 
tion of  not  less  than  ten  miles  eastwardly  from  the 
Mobile  &  Ohio  Railroad,  and  prepared  the  cross- 
ties  for  the  same,  an  issue  of  ten  thousand  dollars  per  mile  of 
state  bonds  shall  be  made  to  said  company,  to  iron  and  equip 
said  section;  and  so  on  for  each  additional  section  of  ten  miles, 
as  is  provided  by  act  of  the  general  assembly  of  1853-54. 

The  word  "eastwardly"  in  the  above  section  was  struck  out  by  the 
Acts  of  1855-56,  ch.  186,  p.  326.  sec.  35. 

SEC.  5.  That  the  stockholders  in  Henry  and  the  stock- 
holders living  west  of  the  Mobile  &  Ohio  Railroad,  be,  and 
stockholders  they  are  Dere^y»  released  from  their  subscriptions 
released.  to  tne  Nashville  &  Northwestern  Railroad  Com- 
pany. (Acts  Tenn.,  1855-56,  ch.  2,  p.  3;  passed  November 
16,  1855.) 

1.  *The  Hickman  &  Obion  Railroad  Company  was  chartered  by  the 
Acts  Tenn.,  1853-54,  ch.  307,  p.  685,  and  by  Acts  Ky.,  1853-54,  ch.  781,  p. 
348,  to  extend  from  Hickman.   Ky..  to  the  Mobile  &  Ohio  Railroad,  in 
Obion  county,  Tenn.     Sec.  25  of  its  charter  also  gave  it  power  to  con- 
struct its  road  to  Dresden,  Tenn..  in  the  event  the  Nashville  &  North- 
western Railroad  Company  did  not  build  that  far  west.     The  Nashville 
&  Northwestern  Railroad  Company  built  to  Union  City,  however,  and 
then  purchased  the  Hickman  &  Obion   Railroad.     The  Tennessee  and 
Kentucky  charters  of  the  latter  road  were  identical. 

2.  Under  this  authority  the  Nashville  &  Northwestern  Railroad  Com- 
pany purchased  the  Hickman  &   Obion   Railroad.     The  authority  was 
also  g-iven  by  the  State  of  Kentucky  by  Acts  1855-56,  ch.  142,  p.  281. 

3.  For  convenience,   the  charter  of  the  Hickman  &  Obion  Railroad 
Company  is  inserted  here,  and  is  as  follows: 

4.  Original  charter  of  the  Hickman  &  Obion  Railroad  Company. 

(Acts  Tennessee,  1853-4,  p.  685.) 

SECTION  1.  Incorporation,  name,  route,  general  powers. — Be  it  en- 
acted by  the  General  Assembly  of  the  Kt<tte  of  Tennessee,  That  the  president, 
directors,  and  stockholders  of  the  joint  stock  company  already  formed 
to  build  a  railroad  from  the  town  of  Hickman,  in  the  State  of  Kentucky, 
to  the  Mobile  &  Ohio  railroad  track  in  the  county  of  Obion,  in  the  State 
of  Tennessee,  in  Houser  Valley,  be,  and  they  are  hereby,  constituted  a 
corporation  and  body  politic,  by  the  name  and  style  of  the  Hickman  & 
Obion  Railroad  Company,  and  by  the  said  corporate  name  shall  be  au- 
thorized to  sue  and  be  sued,  and  to  buy,  receive  by  gift,  hold,  sell,  and 
convey  real  and  personal  estate  as  hereinafter  provided;  make  contracts, 
make  by-laws,  and  do  all  other  acts  properly  incident  to  a  corporation, 
and  necessary  and  proper  in  the  transaction  of  the  business  for  which 
said  corporation  is  constituted ;  and  to  have  and  use  a  common  seal,  and 
the  same  to  alter  or  destroy  at  its  pleasure,  and  have  perpetual  succes- 
sion of  members. 

Incorporation.— The  Hickman  A'  Obion  Railroad  Company  was  also  chartered  in  the  State 
of  Kentucky  by  Acts  1853-4,  ch.  781,  p.  348.  The  Kentucky  charter  will  not  be  set  out,  as  it 
is  identical  with  this. 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         105 

Snr.  •„>.  Capital,  value  of  shares. — lie  It  enncteil.  That  the  said  cor- 
poration may  increase  the  corporate  stock  thereof  to  thirty  thousand 
shares,  at  one  hundred  dollars  each;  and  the  president  and  directors 
shall  have  the  power  of  receiving  subscriptions  of  stock  to  that  amount 
at  any  time  according  to  their  discretion. 

This  company  having  been  purchased  bv  the  Nashville  A  Northwestern  Rtilroad  Com- 
pany, which  in  turn  has  been  purchased  by  tin-  Nusliville.  Chattanooga  .v  St.  Louis  Railway, 
tin-  amount  of  capital  iiiul  value  of  shares  is  now  controlled  by  the  latter  company  as  rep. 
ri-M-ntintr  the  entire  system.  See  charter  of  Nashville  A:  Chattanooga  Railroad  Company, 
rh.  1.  herein. 

SEC.  3.  Directors,  number,  how  elected,  scale  of  voting. — Be  it  en- 
tit-tfil.  That  the  affairs  of  the  company  shall  be  managed  by  a  board  of 
directors,  to  consist  of  eleven,  and  shall  be  chosen  by  the  stockholders 
from  their  own  body,  each  stockholder  casting  one  vote  for  each  share 
he  may  possess:  and  the  president  of  the  company  shall  be  elected  by 
the  directors  from  their  own  members,  in  such  manner  as  the  regulations 
of  the  corporation  shall  prescribe. 

See  sec.  8  of  charter  of  Nashville.  Chattanooga  *V  St.  Louis  Railway,  ch.  1.  heroin. 

SEC.  4.  Temporary  president  and  directors  to  act  until  when. — Be 
it  ciutctcd.  That  the  president  and  directors  already  elected  and  now  con- 
ducting the  business  of  said  company,  to  wit.  G.  W.  (Jibbs,  (J.  \V.  L. 
Marr,  Sauney  Burress.  Olion  F.  Young.  E.  H.  Fuqua,  \V.  Robinson.  Hur- 
gess  R.  Noles.  A.  D.  Kinman.  Robert  Matson.  Ferdinand  Wilson,  and  .1. 
F.  Mares,  shall  continue  to  transact  the  business  until  the  third  of  Au- 
gust. 1854.  with  full  power  to  till  vacancies,  and  until  there  shall  be  an- 
other board  elected  and  organized  under  the  regulations  prescribed  by 
the  by-laws  of  said  corporation,  and  the  elections  thereafter  shall  be 
annual. 

SEC.  5.  Vacancies  in  board,  how  filled. — Be  It  enticted.  That  the  board 
of  directors  may  till  all  vacancies  which  may  occur  during  the  time  for 
which  they  were  elected,  and,  in  the  absence  of  the  president,  may  till 
his  place  by  electing  one  of  their  number  president  pro  tetnpore. 

See  gee.  10  of  charter  of  Nashville,  Chattanooga  A  St.  Louis  Railway,  ch.  1,  herein. 

SEC.  6.  Contracts  binding  without  seal. — Be  It  enacted.  That  all  con- 
tracts and  arrangements  authenticated  by  the  president  of  the  board, 
shall  be  binding  on  the  company,  whether  with  or  without  seal,  or  such 
other  mode  of  authentication  as  the  by-laws  may  prescribe. 

868  tec.  11  of  charter  of  Nashville,  Chattanooga  »V  St.  Louis  Railway,  ch.  1.  herein. 

SEC.  7.  Liability  of  directors. — Be  It  ciutctfil.  That  the  board  of  di- 
rectors shall  not  exceed  in  their  contract  the  capital  stock  of  the  corpo- 
ration, and  of  the  funds  which  the  company  may  have  borrowed  and 
placed  at  the  disposal  of  the  board;  and.  in  case  they  shall  do  so,  the 
president  and  directors  who  may  be  present  at  the  meeting  at  which  such 
contract  or  contracts,  so  exceeding  tbe  amount  aforesaid,  shall  be  made 
jointly  and  severally  liable  for  the  excess,  both  to  the  contractor  or  con- 
tractors and  to  the  corporation;  Provided,  That  anyone  may  discharge 
himself  from  such  liability  by  voting  against  such  contract  or  contracts, 
and  causing  said  vote  to  be  entered  on  the  books  of  the  company,  and 
giving  notice  thereof  to  the  next  general  meeting  of  the  stockholders. 

See  sec.  12  of  charter  of  Nashville,  Chattanooga  A  St.  Louis  Railway,  ch.  1,  herein. 

SEC.  8.  Exclusive  transportation,  transportation  charges. — lie  it 
cnnctctl.  That  the  said  company  shall  have  the  exclusive  right  of  trans- 
portation or  conveyance  of  persons,  goods,  merchandise,  and  produce 
over  said  road  by  them  to  be  constructed;  Provided,  That  the  cost  of 
transportation  or  conveyance  shall  not  exceed  thirty-five  cents  per  hun- 
dred pounds  on  heavy  articles  and  ten  cents  per  cubic  foot  on  articles  of 
measurement  for  every  hundred  miles,  and  five  cents  a  mile  for  every 
passenger;  Ami  provided.  That  said  company,  when  they  sit,  may  farm 


106   ACTS  AMENDING  CHARTER  NORTHWESTERN  BRANCH 

out  their  rights  of  transportation  on  said  road,  subject  to  the  rules  above 
mentioned. 

See  notes  to  sec.  14  of  charter  of  Nashville,  Chattanooga  &  St.  Louis  Railway,  ch.  1, 
herein. 

SEC.  9.  Installments,  forfeiture. — Be  it  enacted,  That  the  board  of 
directors  may  call  for  the  payment  of  the  capital  stock  at  the  rate  of  not 
more  than  ten  dollars  on  each  share  for  every  sixty  days;  and  twenty 
days'  notice  shall  be  given  in  some  newspaper  of  such  call;  and  a  failure 
to  pay  or  secure  to  be  paid,  according  to  the  rules  of  said  corporation, 
any  of  the  installments  so  called  as  aforesaid,  shall  induce  a  forfeiture 
of  the  share  or  shares  on  which  default  shall  be  so  made,  and  payments 
thereon,  and  the  same  shall  vest  in  said  company,  but  may  be  restored 
to  the  owner  or  owners  by  the  board  of  directors,  if  they  deem  proper, 
on  the  payment  of  all  arrears  on  such  share  or  shares,  and  legal  interest 
thereon;  or  the  directors  may  have  the  forfeiture  after  thirty  days'  de- 
fault, and  save  the  stockholder  for  the  installments  due,  at  their  dis- 
cretion. 

SEC.  10.  Transfer  of  shares. — Be  it  enacted,  That  the  stock  of  said 
company  may  be  transferred  in  such  manner  and  form  as  may  be  pre- 
scribed by  the  by-laws  of  said  company. 

See  sec.  16  of  charter  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  ch.  1,  herein. 

SEC.  11.  Directors  to  make  annual  reports,  may  call  meetings. — Be 
it  enacted.  That  the  board  of  directors  shall,  once  in  each  3*ear,  make  a 
full  report  of  the  state  of  the  company's  affairs  to  the  stockholders  at  a 
general  meeting,  and  shall  have  full  power  to  call  a  general  meeting  of 
the  stockholders  whenever  the  board  may  deem  it  expedient. 

SEC.  12.  Lands  maybe  purchased  for  what.— Be  it  enacted.  That  the 
said  company  may  purchase,  have  and  hold  in  fee,  or  for  a  term  of  years, 
any  lands,  tenements,  hereditaments  which  may  be  necessary  for  said 
road,  or  appurtenances  thereof,  or  for  the  erection  of  depositories,  store- 
houses, or  for  workshops  or  foundries,  to  be  used  for  said  company,  or 
for  procuring  timber,  stone,  or  any  other  materials  necessary  for  the 
construction  of  said  road  or  its  appurtenances,  or  for  effecting  transpor- 
tation, or  for  other  purposes. 

SEC.  13.  Crossings  of  roads  and  water  courses. — Be  it  enacted,  That 
said  company  shall  have  the  right,  when  necessary,  to  construct  said 
road  across  or  along  any  public  road  or  water  course,  provided  the  roads, 
and  the  navigation  of  such,  shall  not  be  obstructed. 

SEC.  14.  Right  of  way,  how  condemned. — Be  it  enacted.  That  when 
any  lands  or  right  of  way  may  be  required  by  said  company  for  the  pur- 
pose of  constructing  said  road,  and  for  want  of  agreement  as  to  the  value 
thereof,  or  for  any  cause,  the  same  cannot  be  purchased  from  the  owner 
or  owners,  the  same  may  be  taken  at  valuation  by  five  commissioners, 
or  a  majority  of  them,  to  be  appointed  by  the  circuit  court  of  the  county 
where  said  land  or  right  of  way  is  situated,  and  the  said  commissioners, 
before  they  shall  act.  shall  severally  take  an  oath  before  some  justice  of 
the  peace,  faithfully  and  impartially  to  discharge  the  duty  assigned 
them:  and.  on  making  said  valuation,  the  commissioners*  the  actual  loss 
or  damage  to  the  owner  or  owners  in  consequence  of  the  land  being 
taken  and  the  right  of  way  surrendered.  The  proceedings  of  said  com- 
missioners shall  be  returned,  accompanied  with  a  full  description  of  the 
land  or  right  of  way,  under  their  hands  and  seals,  of  a  majority  of  the 
said  commissioners,  to  the  court  from  whence  the  commission  issued, 
there  to  remain  a  matter  of  record.  In  case  either  party  shall  appeal 
from  the  decision  of  the  commissioners  to  the  next  session  of  the  court 
granting  the  commission,  and  give  reasonable  notice  to  the  opposite 
party  of  such  appeal,  the  court  shall  order  a  new  valuation  to  be  made 
by  a  jury,  who  shall  be  charged  therewith  at  the  same  term,  or  as  soon 


NASHVILLE,    CHATTANOOGA   &    ST.    LOUIS    RAILWAY.         107 

• 

as  practicable,  and  their  verdict  shall  be  final  and  conclusive  between 
the  parties,  unless  a  new  trial  be  granted,  and  the  land  or  right  of  way 
so  valued  by  the  commissioners  or  verdict  of  a  jury,  shall  vest  in  said 
company  so  soon  as  the  amount  of  such  valuation  be  paid,  or  a  tender 
and  refusal  thereof,  to  the  extent  of  one  hundred  feet  wide.  When  there 
may  be  an  appeal  by  either  party,  the  same  shall  not  prevent  the  works 
intended  to  be  constructed  from  proceeding;  but  when  the  appeal  is 
taken  by  the  company,  they  shall  enter  into  bond  and  security  to  the 
opposite  party,  approved  by  the  clerk,  in  double  the  amount  of  the  val- 
uation and  interest,  in  case  the  same  shall  be  confirmed,  and.  in  case  it 
be  reversed,  then  to  pay  the  amount  of  the  valuation  thereafter  to  be 
made  by  the  jury  and  confirmed  by  the  court;  Provide'!,  That  when  the 
land  cannot  be  had  by  gift  or  purchase,  the  operations  of  the  work  are 
not  to  be  hindered  or  delayed  during-  the  pendency  of  any  proceedings 
tn  ji^sess  its  value  as  aforesaid,  nor  shall  any  injunction  or  supersedeas 
be  awarded  by  any  judge  or  court  to  delay  the  progress  of  said  work. 

1.  *The  wording  of  the  above  i-ection  is  exactly  as  it  appears  in  the  Acts  of  1853-4,  p. 
685.    There  was  something  evidently  left  out. 

2.  See  notes  to  sees.  24  and  25  of  charter  of  Nashville,  Chattanooga  A  St.  Louis  Railwayt 
ch.  1.  herein. 

SKC.  15.  Intrusion,  punishment  for. — Be  it  enacted;  That  if  any  per- 
sons shall  intrude  upon  said  railroad,  or  any  part  thereof,  or  the  rights 
and  privileges  connected  therewith,  without  the  permission  or  contrary 
to  the  will  of  said,  company,  he,  she,  or  they  shall  forthwith  forfeit  to 
the  said  company  all  the  vehicles  that  may  be  intruded  on  said  road,  and 
the  same  may  be  recovered  by  suit  at  law;  and  the  person  or  persons  so 
intruding1  may  also  be  indicted  for  a  misdemeanor,  and  upon  conviction 
fined  and  imprisoned  by  any  court  of  competent  jurisdiction. 

SEC.  16.  Obstruction  a  nuisance. — Be  it  enacted.  That  every  obstruc- 
tion to  the  safe  and  free  passage  of  vehicles  on  said  road  shall  be  deemed 
a  public  nuisance,  and.  as  such,  may  be  abated  by  an  officer,  agent,  or 
servant  of  the  company;  and  the  person  causing  such  obstruction  may 
be  indicted  and  punished  for  erecting  a  public  nuisance  before  any  com- 
petent jurisdiction. 

The  l:in'_rii:i-_'i-  of  the  above  section  is  exactly  as  it  appears  in  the  act.  The  word  court, 
in  the  last  line,  was  evidently  unintentionally  left  out. 

SKC.  17.  May  establish  warehouses  and  charge  storage,  when. — Be 
it  enacted,  That  said  company  shall  have  the  right  to  take  at  the  store- 
house they  may  establish  or  rent  to  the  road,  all  goods,  wares,  merchan- 
dise, and  produce  intended  for  transportation:  prescribe  the  rules  of 
priority,  and  charge  and  receive  such  just  and  reasonable  compensation 
for  storage  as  they,  by  rule,  may  establish,  which  they  shall  cause  to  be 
published  (or  may  be  agreed  upon  with  the  owner),  which  may  be  dis- 
tinct from  the  charges  of  transportation,  provided  the  said  company 
shall  not  charge  or  secure  storage  on  goods,  wares,  or  produce  which 
may  be  delivered  to  them  at  their  regular  depositories  for  immediate 
transportation,  and  which  the  company  may  have  the  power  of  trans- 
porting immediately. 

SEC.  18.  Dividends,  when  paid. — Be  It  enacted.  That  the  profits  of  the 
company,  or  so  much  thereof  as  the  board  of  directors  may  deem  advis- 
able, shall,  when  the  officers*  of  the  company  will  permit,  be  semian- 
nually  divided  among  the  stockholders,  in  proportion  to  the  stock  each 
may  hold. 

*The  word  " officers  "  in  the  above  section  evidently  was  Intended  for  "affairs."  The 
section  is  inserted  exactly  as  it  ap|>ears  in  the  original  act. 

SEC.  15t.  Banking  prohibited,  may  insure.  — Re  it  eitartcd.  That  the 
said  company  is  hereby  expressly  prohibited  from  carrying  on  any  bank- 
ing operations,  but  may  effect  insurance  upon  lives  and  property  trans- 
ported on  said  road. 


108        ACTS    AMENDING    CHARTER    NORTHWESTERN    BRANCH 

• 

SEC.  20.  Company  must  construct  crossings. — Be  it  enacted,  That 
whenever,  in  the  construction  of  said  road,  it  shall  be  necessary  to  cross 
or  intersect  any  established  road  or  way,  it  shall  be  the  duty  of  the  com- 
pany to  construct  said  road  across  such  established  road  or  way  so  as 
not  to  impede  the  passage  or  transportation  of  persons  or  property  along 
the  same;  or  where  it  shall  be  necessary,  through  the  land  of  any  indi- 
vidual, it  shall  be  their  duty  to  provide  for  such  individual  a  proper 
wagon  way  or  ways  across  said  road. 

SEC.  21.  Bight  of  way,  additional  powers. — Be  It  enacted,  That  the 
said  company  shall  have  the  right  of  way  for  said  road  from  the  line  of 
the  State  of  Kentucky  south  to  the  terminus  thereof;  and  they  shall 
have  such  additional  power  as  may  be  necessary  and  convenient  for  the 
successful  execution  of  the  powers  granted  in  this  charter,  and  for  the 
successful  construction  and  management  of  the  work. 

SEC.  22.  Exemption  of  officers,  etc.,  from  road,  jury,  and  military 
duty. — Tie  it  enacted.  That  the  president  and  directors,  clerks,  agents, 
officers,  and  servants  of  said  company  shall  be  exempt  from  military 
duty,  except  in  case  of  invasion  or  insurrection,  and  shall  also  be  exempt 
from  serving-  on  juries  and  working  on  public  roads. 

SEC.  23.  May  own  slaves. — Be  it  enacted.  That  the  said  company  shall 
have  full  power  to  purchase  and  own  such  number  of  slaves  as  shall  be 
necessary  for  the  construction  of  said  road,  and  for  keeping  the  same  in 
repair. 

SEC.  24.  Exemption  from  taxation. — Be  it  enacted.  That  the  capital 
stock  of  said  company  shall  be  forever  exempt  from  taxation,  and  the 
road,  with  all  its  fixtures  and  appurtenances,  including  workshops, 
warehouses,  and  vehicles  of  transportation,  shall  be  exempt  from  taxa- 
tion for  the  period  of  twenty  years  from  the  completion  of  said  road,  and 
no  longer. 

SEC.  25.  May  extend  road  to  Dresden,  when  and  how. — Be  it  enacted, 
That  said  company  shall  have  power,  and  they  are  hereby  authorized,  to 
extend  their  road  to  the  town  of  Dresden,  in  the  county  of  Weakley.  or 
connect  with  the  Nashville  it  Northwestern  road  at  such  point  as  may 
be  convenient  in  the  county  of  Weakley  or  Obion,  at  their  discretion, 
which  connection,  if  made,  shall  be  regulated  by  the  provisions  of  the 
thirty-eighth  section  of  the  charter  of  the  said  Nashville  &  Northwest- 
ern road,  and.  in  the  event  said  extension  shall  be  determined  upon,  then 
the  company  shall  be  authorized  to  increase  their  capital  stock  to  the 
amount  of  five  hundred  thousand  dollars,  and  said  company  shall  have, 
possess,  and  enjoy  the  same  rights  and  privileges  and  be  subject  to  the 
same  rules,  regulations,  and  liabilities  upon  said  extension  as  are  here- 
inbefore prescribed  in  the  charter  for  the  other  portion  of  said  road; 
Provided.  That  said  road  shall  not  be  extended  to  the  town  of  Dresden 
only  in  the  event  of  the  failure  of  the  Nashville  &  Northwestern  Rail- 
road Company  to  build  their  road,  as  required  by  law.  or  with  the  con- 
sent of  said  company.  (Acts  Tenn..  1853-54,  p.  685;  passed  December  20, 
1853.) 

The  Nashville  \  Northwestern  Railroad  Company  built  its  road  to  Un'on  City,  and 
hence  this  section  was  inoperative.  The  Nashville  it  Northwestern  Railroad  Company 
then  purchased  this  road. 

5.  Charter  amended;  may  unite  and  consolidate  with  or  lease 
Mississippi  Central  Railroad  Company,  how;  may  also 
unite  with  any  company  connecting  with  it  in  direction 
of  New  Orleans. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the  State 
of  Tennessee,  That  the  Nashville  &  Northwestern  Railroad  Com- 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         109 

puny  be,  and  the  said  company  is  hereby,  authorized  at  any 
time  hereafter  to  unite  and  consolidate  with  the  Mississippi 
Central  Railroad  Company,  upon  such  terms  and  conditions  as 
may  be  agreed  upon  by  the  board  of  directors  of  each  company, 
the  two  companies  to  become  thereafter  one  company,  with  all 
the  corporate  jxjwers,  rights,  and  privileges  conferred  by  their 
rr-jiretive  charters  where  there  is  no  conflict  between  them,  and 
with  the  corporate  powers,  rights,  and  privileges  of  the  charter 
of  Nashville  &  Northwestern  Railroad  Company  when  there  is 
any  conflict. 

SEC.   2.  That  the  united  company  shall   be  known    by  the 
name  and  style  of  the  Nashville  &  Mississippi  Rail-  NashvJ1Je& 
road  Company,  or    such  other    name   as   may  be  ^inVoldCom- 
agreed  upon  by  the  directors  of  the  united  company.   pany' 

SEC.  3.  That  upon  the  union  of  said  companies  the  stock- 
holders of  each  shall  become  stockholders  in  the  common  road, 
according  to  the  several  amounts  of  their  stock,  or  as  may  be 
agreed  upon;  and  immediately  after  such  union  the  stockholders 
shall,  at  a  general  meeting,  to  be  called  by  the  president  and 
directors  of  the  Nashville  &  Northwestern  Railroad  Company, 
elect  one  Inmrd  of  directors  for  the  new  company,  under  such 
rules  and  regulations,  and  in  such  manner  as  the  stockholders 
at  the  general  meeting  shall  prescribe. 

SE<'.  4.  That  if  a  union  of  the  new  company  is  not  effected, 
as  alx)ve  provided,  the  Nashville  &  Northwestern  Railroad  Com- 
pany l>e,  and  the  said  company  hereby  is,  authorized 
to  lease  the  Mississippi  Central  Railroad  for  such  a 
length  of  time,  and  upon  such  terms  and  conditions,  as  may  be 
agreed  upon  by  the  board  of  directors  of  each  company,  and 
after  such  lease  to  run,  use,  and  manage  the  said  road  so  leased, 
whether  in  this  or  any  other  state,  under  and  with  all  the  cor- 
porate powers,  rights,  and  privileges,  and  subject  to  the  limi- 
tations and  restrictions  of  the  charter  of  the  comjMiny  whose 
road  is  leased. 

SEC.   5.    That  the  said  Nashville  &  Northwestern  Railroad 
Company,  or  the  united  company,  as  al>ove,  is  also  May  unite 
further  authorized  to  unite  with  any  other  company  pany. 


110        ACTS    AMENDING    CHAKTER    NORTHWESTERN    BRANCH 

whose  road  may  connect  with  it  in  the  direction  of  New 
Orleans,  in  the  State  of  Louisiana,  upon  the  same  terms  and 
conditions  and  in  the  same  way  as  above  provided,  so  as  to 
form  a  continuous  line  of  railroad  to  or  in  the  direction  of 
New  Orleans.  (Acts  Tenn.,  1859-60,  ch.  177;  passed  March 
22,  1860.) 

6.  Charter  amended  ;  may  unite  and  have  common  track  with 
Memphis,  Clarksville  &  Louisville  Railroad,  where  and 
how  ;  may  change  route,  may  consolidate  with  Missis- 
sippi &  Tennessee  Central  Railroad,  how. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the 
State  of  Tennessee,  That  the  Nashville  &  Northwestern  Railroad 
Company  and  the  Memphis,  Clarksville  &  Louisville  Railroad 
Company  be  authorized  to  unite  their  roads  and  make  a  com- 
mon track  for  such  distance  and  upon  such  terms  as  the  said 
companies,  through  their  presidents  and  directors,  may  agree 
upon,  and  may  build  a  common  bridge  across  the  Tennessee 
river,  and,  if  said  companies  unite,  they  shall  be  entitled  to  ten 
thousand  dollars  per  mile  of  the  state  aid  now  allowed  by  law 
to  said  two  companies  for  the  distance  thus  run  in  common, 
and  the  whole  of  the  state  aid  for  the  bridge  across  Tennessee 
river. 

SEC.  2.  That  the  Nashville  &  Northwestern  Railroad  Corn- 

May  change  Panv  ^je  authorized  to  change  the  location  of  their 
location. 


SEC.  3.  That  nothing  in  this  act  shall  be  so  construed  as  to 
give  the  Nashville  &  Northwestern  Railroad  Company  more 
than  ten  thousand  dollars  per  mile  on  any  portion  of  said  road 
run  singly,  and  the  same  amount  on  such  portion  of  consoli- 
dated road. 

SEC.  4.  That  the  Mississippi  and  Tennessee  Central  Railroad 
may  consolidate  with  the  roads  mentioned  in  the  first  section  of 
this  act,  upon  such  terms  and  at  such  place  as  may  be  agreed 
upon  by  the  board  of  directors  of  the  consolidated  roads  men- 
tioned in  the  first  section  of  this  act;  Provided,  If  the  Nashville 
&  Northwestern  Railroad  is  changed  from  its  present  location 
in  the  county  of  Carroll,  the  stockholders  shall  be  released 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         Ill 

from  the  payment  of  any  more  of  the  calls  for  stock  from  said 
company;  And  provided.  That  the  consolidated  roads  shall  re- 
ceive no  more  state  aid  than  ten  thousand  dollars  per  mile,  and 
the  bridge  aid  already  appropriated  by  law  to  the  two  first 
roads  named  in  this  act.  (Acts  Tenn.,  1857-8,  ch.  89;  passed 
February  27,  1858.) 

7.  Nashville  &  Northwestern  Railroad  to  adopt  gauge  of 
Nashville  &  Chattanooga  Railroad  Company;  may  run 
cars  to  depot  of  Central  Trunk  Railroad,  how;  charter 
amended,  stockholders  to  pay  only  one  per  cent,  cash  in 
subscribing. 

SEC.  10.  Be  it  enacted,  That  the  Tennessee  Central  Railroad 
Company,  the  Memphis  &  Nashville  Railroad  Company,  and 
the  Northwestern  Railroad  Company,  shall  be  required  to  con- 
struct their  tracks  respectively  with  the  same  gauge  as  the 
Nashville  &  Chattanooga  Railroad  and  the  Central  Trunk  Rail- 
road Company,  and  each  of  said  companies  shall  have  the  right 
to  pass  their  locomotives  and  train  of  cars  to  the  depot  of  the 
Central  Trunk  Railroad,  which  may  be  established  on  either 
side  of  the  Tennessee  river,  without  charge  from  said  Central 
Trunk  Railroad  Company,  and  shall  have  the  same  privilege  of 
connecting  with  their  road  as  is  granted  in  the  fortieth  section 
of  the  Nashville  &  Chattanooga  Railroad  charter,  and  the  priv- 
ilege shall  be  reciprocal  between  the  several  companies. 

SEC.  11.   [Relates  to  other  roads.] 

SEC.  12.  Be  it  further  enacted,  That  the  charter  of  the  Nash- 
ville &  Northwestern  Railroad  be  so  amended  that  the  stock- 
holders, upon  subscribing,  shall  not  be  required  to  pay  more 
than  one  per  cent,  of  their  subscriptions,  and  not  that  unless 
required  by  the  commissioners,  and  that  the  acts  of  any  three 
of  the  commissioners,  at  any  one  place,  may  be  valid  without 
the  concurrence  of  the  whole  board.  (Acts  Tenn.,  1851-2,  p. 
531;  passed  February  28,  1852.) 


112  ACTS    RELATING    TO    NORTHWESTERN    BRANCH 

ACTS     OF     TENNESSEE    RELATING    TO    NASH- 
VILLE &  NORTHWESTERN   RAIL- 
ROAD   COMPANY. 

1.  To  issue  stock  to  taxpayers  for  taxes  paid  to  provide  inter- 

est on  bonds  issued  by  this  company,  when. 

SECTION  1.  That  ,  the  Northwestern  Railroad 

Company,  ,  shall,   by  and  with  the  consent  of  the 

county  court  of  Davidson  county,  be  required  to  issue  stock  to 
the  taxpayers  of  said  county  for  the  amount  of  the  annual  tax 
which  has  already  and  may  hereafter  be  paid  by  said  taxpayers 
to  provide  for  the  interest  on  the  bonds  issued  by  said  county 
for  said  railroads,  on  presentation  of  the  tax  receipts  for  the 
respective  railroads;  said  tax  receipts  shall  be  negotiable  by 
indorsement,  and  no  stock  shall  be  issued  for  a  less  amount  than 
one  share,  provided  said  railroad  compan}^  shall  not  be  required 
to  issue  stock  for  said  tax  receipts  until  the  first  dividend  is 
ready  to  be  made,  at  which  time,  or  any  time  thereafter,  shall 
issue  the  stock.  (Acts  Tenn.,  1855-6,  ch.  104,  p.  117;  passed 
February  14,  1856.) 

2.  Extra  time  given  to  get  stock  and  prepare  road. 

SEC.  7.  Be  it  further  enacted,  That  the  Nashville  &  North- 
western Railroad  Company  shall  have  the  further  time  of  two 
years  in  which  to  get  the  stock  and  prepare  a  section  for  the 
iron,  as  required  by  law,  provided  this  shall  not  interfere  with 
the  rights  of  stockholders.  (Acts  Tenn.,  1857-8,  ch.  60,  p. 
128,  sec.  7;  passed  February  13,  1858.) 

3.  Resolution  directing  the  governor  to  surrender  the  Nash- 

ville &  Northwestern  Railroad  Company  to  its  president 
and  directors. 

Be  it  resolved  by  the  General  Assembly  of  the  State  of  Ten- 
newee,  That  the  governor  be,  and  he  is  hereby,  instructed  to 
immediately  surrender  the  Nashville  &  Northwestern  Railroad 
to  the  president  and  directors  of  said  company,  provided  noth- 
ing in  this  resolution  shall  be  construed  as  to  vitiate  in  any 
manner  the  indebtedness  of  the  state  in  or  upon  said  railroad. 
(Acts Tenn.,  1868-9,  ch.  34,  p.  383;  adopted  December  3,  1868.) 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         113 

4.  Resolution  directing  inquiry  concerning  application  of  bonds 

by  Nashville  &  Northwestern  Railroad  Company. 

This  resolution  directed  an  examination  to  be  made  as  to 
whether  the  receiver  of  the  Nashville  &  Northwestern  Railroad 
used  the  bonds  on  the  road.  (Acts  Tenn.,  1868-9,  p.  379; 
passed  November  27,  1868.) 

5.  State  aid  to  Nashville  &  Northwestern  Railroad  Company. 

Many  acts  of  the  legislature  of  the  State  of  Tennessee  were 
passed  authorizing  state  aid  to  be  granted  to  the  Nashville  & 
Northwestern  Railroad  for  the  purpose  of  building  and  equip- 
ping its  road.  The  state  aid  was  extended  by  having  the  gov- 
ernor indorse  the  bonds  of  the  road  on  behalf  of  the  state. 
These  acts  are  quite  lengthy,  and  are  so  seldom  required 
that,  for  the  purpose  of  space  and  economy,  it  is  not  deemed 
advisable  to  insert  them  in  full  in  this  compilation,  but  simply 
to  refer  to  the  act  and  page  where  they  can  be  found.  Below 
will  be  found  all  the  acts  relating  to  this  subject,  set  out  in  the 
order  of  their  passage: 

1.  Acts  1851-52,  ch.  151,  sec.  10.     Governor  authorized  to 
issue  coupon  bonds  for  an  amount  not  exceeding  $8,000  per 
mile  on  certain  conditions.      For  conditions,  see  act.     But  see 
section  15  of  same  act;  also  section  19  of  same  act.     See,  also, 
Acts  1853-54,  ch.  132,  sec.  7. 

2.  Acts  1853-54,  ch.  131,  sec.  1.     State  aid  granted  to  the 
extent  of  $10,000  a  mile. 

3.  Acts  1855-56,  ch.  120,  sec.  7,  p.  143.     Governor  author- 
ized to  issue  bonds  to  an  amount  not  exceeding  $100,000,  a 
part  to  be  used  in  building  bridges  across  Obion  river,  Spring 
creek,  Big  Sandy,  Turnbull,  and  Harpeth  rivers. 

4.  Acts  1865-66,  ch.   14,   p.   33.     Governor  authorized  to 
issue  bonds  to  Nashville  &  Northwestern  Railroad  Company  to 
the  amount  of  $300,000. 

5.  Acts  1865-66,  ch.  95,  sec.  2.     Governor  authorized   to 
issue  bonds  to  amount  of  $200,000. 

6.  Acts  1866-67,  ch.  56,  sec.  26.     Governor  authorized  to 
indorse  bonds  to  the  extent  of  $125,000. 

8 


114  ACTS    RELATING    TO    NORTHWESTERN    BRANCH 

7.  Acts  1866-67,  ch.  12,  p.  11,  sec.  3.     Governor  of  state 
authorized  to  issue  bonds  to  Nashville  &  Northwestern  Railroad 
Company  to  the  extent  of  §200,000. 

8.  Acts  1867-68,  ch.  17,  sec.  11,  p.  14.     Governor  author- 
ized to  issue  bonds  to  the  Nashville  &  Northwestern  Railroad 
Company  to  the  amount  of  $35 0,000.     Same  act  authorized 
governor  to  issue  §200,000  of  bonds  more  to  said  road  on  its 

D 

extension  from  Huntingdon  to  Jackson. 
All  of  these  acts  were  not  taken  advantage  of. 

6.  Nashville  &  Northwestern  Railroad  Company  allowed  to 
run  cars  upon  tracks  of  Nashville  &  Memphis  Railroad 
Company,  and  Memphis,  Clarksville  &  Louisville  Rail- 
road Company,  how. 

SEC.  7.  .  .  .  It  is  further  provided,  that  the  Nashville 
&  Northwestern  Railroad  Company,  from  the  point  of  intersec- 
tion either  with  the  Nashville  &  Memphis  Railroad  Company, 
or  the  Memphis,  Clarksville  &  Louisville  Railroad  Company, 
shall  have  the  same  right,  power,  and  privilege  to  run  their 
cars  upon  the  tracks  of  either  of  said  roads  as  is  provided  in 
the  act  chartering  the  Memphis  &  Charleston  Railroad  Com- 
pany at  the  point  of  intersection  of  said  company  with  the 
Nashville  &  Chattanooga  Railroad  Company;  And  provided 
also,  That  the  subscriptions  made  to  the  Nashville  &  North- 
western Railroad  Company  between  Nashville  and  the  Tennes- 
see river  shall  be  expended  on  that  part  of  the  road  until  fin- 
ished, and  the  subscriptions  west  of  the  Tennessee  river  shall 
be  expended  between  the  Tennessee  and  Mississippi  rivers  until 
the  road  is  there  finished;  and  the  Nashville  &  Northwestern 
Railroad  Company  shall  have,  from  the  passage  of  this  act, 
four  years  within  which  to  complete  the  first  thirty  miles  of 
said  road,  as  provided  by  the  act  of  February  11,  1852.  (Acts 
Tenn.,  1853-54,  ch.  132,  sec.  7  ;  passed  December  16,  1853.) 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         115 

DECREES. 

Chancery  court  amendment  to  charter  of  Nashville  &  North- 
western Railroad  Company;  name  changed;  other  amend- 
ments. 

NASHVILLE  &  CHATTANOOGA  RAILROAD  COMPANY,  Ex  PARTE. 

IN   ClIANCKRY    AT   NASHVILLE,    T.KNX. 

Petition  for  change  of  name  of,  and  amendments  to,  the 
charter  of  the  Nashville  &  Northwestern  Railroad  Company, 
No.  7109. 

This  cause  was  heard  this  fourteenth  day  of  May,  1872,  be- 
fore the  Honorable  Edward  H.  East,  chancellor,  presiding  in 
the  chancery  court  for  the  county  of  Davidson,  State  of  Ten- 
nessee, upon  the  petition  filed  in  this  cause  on  March  9,  1872 
(enrolled,  p.  285,  book  No.  1),  when  it  appeared  to  the  court: 

That  on  March  11,  1872,  the  clerk  and  master  of  this  court 
caused  a  publication  to  be  made  for  thirty  days  in  the  Repub- 
lican Banner,  a  newspaper  published  in  the  city  of  Nashville, 
Tennessee,  which  publication  was  in  the  words  following: 

No.  7109. 

IN    CHANCERY    AT    NASHVILLE. 
STATE  OF  TENNESSEE, 

OFFICE  CLERK  AND  MASTER  CHANCERY  COURT. 

NASHVILLE,  March  11,  1872. 

WHEREAS,  The  Nashville  &  Chattanooga  Railroad  Company, 
on  March  9,  1872,  filed  its  petition  in  the  chancery  court  at 
Nashville,  praying  that  it,  as  purchaser  of  the  Nashville  & 
Northwestern  Railroad  Companyj  be  substituted  to  all  rights, 
privileges,  and  immunities,  and  subject  to  all  the  liabilities  of 
the  act  of  incorporation  under  which  said  Nashville  &  North- 
western Railroad  Company  was  organized,  and  the  acts  amenda- 
tory thereof,  and  that  the  name  of  said  company  be  changed 
to,  and  be  hereafter  known  as,  the  "Nashville,  Memphis  &  St. 
Louis  Railway/'  and  that  the  charter  granted  to  said  Nashville 
&  Northwestern  Railroad  Company  be  ordered  and  changed, 
and  that  a  decree  be  pronounced  by  said  court  granting  said 
alterations,  changes,  and  amendments,  which  are  as  follows,  viz. : 


116     DECREES  RELATING  TO  NORTHWESTERN  BRANCH 

1.  For  the  purpose  of  establishing  and  maintaining  a  com 
munication  by  railroad  between  Nashville  and  the  Mississippi 
river,  the  formation  of  a  company  is  hereby  authorized,  which 
shall  be  a  body  corporate  by  the  name  and  style  of  the  "  Nash- 
ville, Memphis  &  St.  Louis  Railway,"  and  by  this  name  shall 
lie  capable  of  buying,  receiving  by  gift,  holding,   selling,  and 
conveying  real  and  personal  estate,  making  contracts,   suing 
and   being  sued,  making  by-laws,  and  doing  all  other  acts, 
properly  incident  to  a  corporation,  and  necessary  and  proper 
to  the  transaction  of  the  business  for  which  it  is  incorporated, 
and  to  have  and  use  a  common  seal,  which  it  may  alter  or  de- 
stroy, at  its  pleasure,  and  have  perpetual  succession  of  members. 

2.  The  capital  stock  of  said  company  shall  consist  of  eighteen 
thousand  shares  of  one  hundred  dollars  each,  and  the  capital 
stock  may  be  increased  at  any  time  by  the  board  of  directors, 
two-thirds  of  the  number  of  directors    agreeing    thereto,    to 
such  an  amount  as  the  board  of  directors  may  determine. 

3.  The  affairs  of  said  corporation  shall   be  managed  by  the 
board  of  directors,  for  the  time  being,  of  the  Nashville  &  Chat- 
tanooga Railroad  Company,  by  which  the  president  and  such 
other  officers,  as  may  be  determined  by  the  by-laws,  shall  be 
elected  or  appointed,  as  may  be  prescribed  by  the  by-laws. 

4.  All  contracts  authenticated  by  the  board  shall  be  binding 
on  the  corporation  without  seal,  and  such  other  modes  of  au- 
thentication may  be  used  as  the  by-laws  may  prescribe. 

5.  Said  corporation  shall  have  exclusive  right  of  transporta- 
tion  or    conveyance  of    persons,  goods,   or    merchandise  and 
produce  over  the  railroad  by  it  controlled  and  managed  or  con- 
structed.    The  cost  of  transportation  or  conveyance  shall  not 
exceed  thirty-five  cents  per  hundred  pounds  on  heavy  articles, 
and  ten  cents  per  cubic  foot  on  articles  of  measurement,  for 
every  hundred  miles,  and  five  cents  per  mile  for  every  passen- 
ger, and  said  corporation  may  farm  out  its  rights  of  transpor- 
tation subject  to  said  rates. 

6.  The  stocks  of  said  company  may  be  transferred  in  such 
manner  and  form  as  may  be  directed  by  the  by-laws  of  said 
corporation. 


NASHVILLE,    CHATTANOOGA   A    8T.    LOUIS    RAILWAY.         117 

7.  Stockholders  may  vote  in  person  or  by  proxy,  and,  in 
voting  on  all  questions  that  may  l>e  submitted  to  the  decision  of 
the  stockholders,  such  stockholders  shall  be  entitled  to  one  vote 
for  each  share  of  stock  owned  by  him  or  her. 

8.  The  said  corporation  shall  possess  and  enjoy  all  the  rights, 
privileges,  and  immunities  to  which  the  Nashville  <fe  Northwes- 
tern Railroad  Company  are  or  were  entitled  by  sections  twenty, 
twenty-one,   twenty-two,    twenty-three,    twenty- four,    twenty- 
five,    twenty-six,     twenty-seven,    twenty-eight,     twenty-nine, 
thirty,  thirty-one,  thirty-two,  thirty-three,  of  the  Acts  of  the 
general  assembly  of  the  State  of  Tennessee,  ch.  76,  passed  the 
twenty -second  of  January,  1852,  entitled  an  "Act  to  incorpo- 
rate the  Nashville  &  Northwestern  Railroad  Company." 

9.  The  capital  stock  of  said  corporation  shall  be  forever  ex- 
empt from  taxation,  and  the  road,  with  all  its  fixtures  and  ap- 
purtenances, including  workshops,  warehouses,  and  vehicles  of 
transportation,  shall  be  exempt  from  taxation  for  the  period  of 
twenty  years  from  the  formation  of  said  corporation. 

10.  The  said  corporation  may  construct  such  branches  and 
extensions  of  the  present  line  of  railroad  as  may  from  time  to 
time  be  determined  by  its  board  of  directors. 

11.  The  board  of  directors  may,  from  time  to  time,  two- 
thirds  of  all  the  directors  thereof  agreeing  thereto,  cause  to  be 
issued  the  bonds  of  said  corporation  for  such  amounts,   not 
exceeding  twenty  thousand  dollars  per  mile  of  the  entire  rail- 
road operated  and  controlled  by  it,  as  may  be  necessary,  in  the 
opinion  of  said  directors,  to  carry  into  successful  operation  the 
objects  and  purposes  of  said  corporation. 

The  board  of  directors  of  said  corporation  may,  two-thirds 
of  all  the  directors  agreeing  thereto,  extend  its  line  of  railroad 
to  such  points  as  may  be  determined  by  said  board,  and  for  this 
purpose  may  acquire,  by  purchase  or  lease,  other  railroads,  as 
may  from  time  to  time  l>e  determined  by  said  board. 

It  is  therefore  ordered  that  all  persons  who  desire  to  resist 
the  granting  of  said  amendment  and  alteration  to  said  charter, 
as  above  indicated,  or  to  the  prayer  of  the  petition,  do  make 
their  appearance  herein,  on  or  before  the  first  Monday  in  April 


118     DECREES  RELATING  TO  NORTHWESTERN  BRANCH 

next,  1872,  and  then  and  there  show  cause,  if  any  they  have 
or  can,  why  the  prayer  of  said  petition  should  not  be  granted 
and  said  charter  amended,  and  that  a  copy  of  this  order  be 
published  for  thirty  days  in  the  Nashville  Republican  Banner. 

A  copy  attest:  NATHANIEL  BAXTER,  JR., 

FOGG,  WHITESIDES  &  FRIZZELL,  Clerk  and  Master. 

Solicitors  for  Petitioners. 

It  also  appeared  that  no  person  has  appeared  to  show  cause 
why  the  prayer  of  said  petition  should  not  be  granted.  It  also 
appeared  that  under  decree  pronounced  by  this  court,  in  the 
cause  therein  pending  of  the  State  of  Tennessee  v.  The  Edge- 
field  <&  Kentucky  Railroad  Company  and  others,  the  petitioner, 
the  Nashville  &  Chattanooga  Railroad  Company,  became  the  pur- 
chaser of  the  franchises  and  property,  and  of  the  interest  of 
the  state  in  the  Nashville  &  Northwestern  Railroad  Company, 
incorporated  by  the  general  assembly  of  Tennessee,  and  oper- 
ating a  railroad  from  Nashville,  in  said  state,  toHickman,  in  the 
State  of  Kentucky,  and  that  the  petitioner  desires  that  the  name 
of  said  Nashville  &  Northwestern  Railroad  Company  may  be 
changed  as  hereinafter  provided,  and  that  the  privileges  granted 
the  said  Nashville  &  Northwestern  Railroad  Company  in  the 
act  of  incorporation  and  the  acts  amendatory  thereof,  be 
altered  and  changed  as  set  forth  in  said  petition,  and  that  peti- 
tioner, as  purchaser,  may  be  substituted  to  all  the  rights  and 
privileges,  and  subject  to  all  the  liabilities  of  the  act  incorpo- 
rating the  Nashville  &  Northwestern  Railroad  Company. 

And  the  court  being  satisfied  of  the  propriety  of  the  changes 
asked  for,  doth,  in  pursuance  of  the  powers  vested  in  courts  of 
chancery  by  par.  22,  sec.  15,  of  ch.  54  of  the  acts  of  the  gen- 
Vests  rights  era^  assembly  of  the  State  of  Tennessee,  approved 
etc.nCiniises&  c.  January  30,  1871,  order,  adjudge,  and  decree  that 
the  said  Nashville  &  Chattanooga  Railroad  Com- 
pany, as  purchaser  as  aforesaid,  be,  and  the  same  is  hereby,  sub- 
stituted to  all  the  rights,  privileges,  and  immunities,  and  sub- 
ject to  all  the  liabilities,  of  the  act  of  incorporation  under  which 
the  said  Nashville  &  Northwestern  Railroad  Company  was  or- 
ganized, and  the  acts  amendatory  thereof,  and  that  the  name 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         119 

of  said  company  l>e  changed  to  that  of  the  "  Nash- 
ville, Memphis   &   St.   Louis   Railway,"  and   the 
privileges  granted  the  same  by  the  acts  aforesaid  be  altered 
and  changed  so  that,  including  such  portions  of  said  acts  of 
said  corporation  as  are  not  changed  by  this  decree,  the  same 
shall  read  as  follows: 

1.  Name,  style,  and  general  powers.— For  the  purpose  of 

establishing  and  maintaining  a  communication  by  railroad  be- 
tween Nashville,  Tenn.,  and  the  Mississippi  river,  the  forma- 
tion of  a  company  is  hereby  authorized,  which  shall  be  a  body 
corporate  by  the  name  and  style  of  the  "Nashville,  Memphis 
&  St.  Louis  Railway,"  and  by  this  name  shall  be  capable  of 
buying,  receiving  by  gift,  holding,  selling,  and  conveying  real 
and  personal  estate,  making  contracts,  suing  and  l>eing  sued, 
making  by-laws,  and  doing  all  the  other  acts  properly  incident  to 
a  corporation,  and  necessary  and  proper  to  the  transaction  of  the 
business  for  which  it  is  incorporated,  and  to  have  and  use  a  com- 
mon seal,  which  it  may  alter  and  destroy  at  its  pleasure,  and 
have  perpetual  succession  of  members. 

2.  May  increase  capital  stock.— The  capital  stock  of  said 

company  shall  consist  of  eighteen  thousand  shares  of  one  hun- 
dred dollars  each,  and  the  capital  stock  may  be  increased  at  any 
time  by  the  board  of  directors,  two-thirds  of  the  entire  num- 
ber of  directors  agreeing  thereto,  to  such  an  amount  as  the 
board  of  directors  may  determine. 

3.  May  be  managed  by  Nashville  &  Chattanooga  Railroad 

Company. — The  affairs  of  said  company  shall  )>e  managed  by 
the  board  of  directors  for  the  time  being  of  the  Nashville  & 
Chattanooga  Railroad  Company,  by  which  the  president  and 
such  other  officers  as  may  be  determined  by  the  by-laws  shall 
be  elected  or  appointed  as  may  l>e  prescribed  thereby. 

4.  Contracts  of  president  binding  without  seal.— All  con- 
tracts authenticated  by  the  president  of  the  board  shall  l>e  bind- 
ing on  the  company  without  seal,  and  such  other  mode  of  au- 
thentication may  be  used  as  the  by-laws  may  prescribe. 

5.  Rates  of  toll  and  rights  relating  thereto.— Said  company 

shall  have  the  exclusive  right  of  transportation  or  conveyance 


120     DECREES  RELATING  TO  NORTHWESTERN  BRANCH 

of  persons,  goods,  and  merchandise  and  produce  over  the  rail- 
road bv  it  controlled  and  managed  or  constructed.  The  cost 

V 

of  transportation  or  conveyance  shall  not  exceed  thirty-five 
cents  per  hundred  pounds  on  heavy  articles  and  ten  cents  per 
cubic  foot  on  articles  of  measurement  for  every  hundred  miles, 
and  five  cents  per  mile  for  every  passenger,  and  said  company 
may  farm  out  its  right  of  transportation  subject  to  said  rates. 

6.  StOCk  transferable. — The  stock  of  said  company  may  be 
transferred  in  such  manner  and  form  as  may  be  directed  by  its 
by-laws. 

7.  Manner  Of  voting. — Stockholders  may  vote  in  person  or 
by  proxy,  and,  in  voting  on  all  questions  which  may  be  submitted 
to  the  decision  of  the  stockholders,  each  stockholder  shall  be  en- 
titled to  one  vote  to  each  share  of  stock  owned  by  him  or  her. 

8.  May  construct  road  or  branches  along  public  roads  and 

water  Courses. — Said  company  shall  have  the  right,  when  nec- 
essary, to  construct  its  road,  or  any  branch  thereof,  across  or 
along  any  public  road  or  water  course,  provided  said  road  and  the 
navigation  of  such  water  course  shall  not  be  thereby  obstructed. 

9.  May  purchase  bridges  and  turnpikes.— Said  company 

may  purchase,  have,  and  hold  any  bridge  or  turnpike  or  other 
road  over  which  it  may  be  necessary  to  pass,  and,  when  such 
purchase  is  made,  to  hold  the  said  bridge  or  turnpike,  or  other 
road,  on  the  same  terms  and  with  all  the  rights  which  belong 
to  the  individual  or  corporation  from  which  such  purchase  may 
be  made. 

10.  Right  Of  way,  how  acquired. — When  any  lands  or  right 
of  way  may  be  required  by  said  company  for  the  purpose  of 
constructing  its  road  or  any  branch  thereof,  and  for  want  of 
agreement  as  to  the  value  thereof,  or  from  any  other  cause,  the 
same  cannot  be  purchased  from  the  owner,  the  same  may  be 
taken  at  a  valuation  to  be  made  by  five  commissioners,  or  a 
majority  of  them,  to  be  appointed  by  the  circuit  court  of  the 
county  where  some  part  of  the  land  or  right  of  way  is  situated, 
and  the  said  commissioners,   before  they  act,   shall  severally 
take  an  oath  before  some  justice  of  the  peace,  faithfully  and 
impartially  to  discharge  the  duties  assigned  them.      In  making 


NASHVILLE,    CHATTANCXX5A    &    ST.    LOUIS    RAILWAY.         121 

the  said  valuation,  the  said  commissioners  shall  take  into  con- 
sic  It-ration  the  loss  or  damage  which  may  occur  to  the  owner  of 
the  land  in  consequence  of  the  land  being  taken  or  the  right  of 
way  surrendered,  and  also  the  benefit  and  advantage  he,  she, 
or  they  may  receive  from  the  erection  or  establishment  of  the 
railroad  or  work,  and  shall  state  particularly  the  nature  and 
amount  of  each,  and  the  excess  of  loss  and  damage  over  and 
above  the  benefit  and  advantage,  shall  form  the  measure  of  valua- 
tion of  the  said  land  or  right  of  way.  The  proceedings  of  said 
commissioners,  accompanied  with  a  full  description  of  the  said 
land  or  right  of  way,  shall  be  returned,  under  the  hands  and 
seals  of  a  majority  of  the  commissioners,  to  the  court  from 
which  the  commission  issued,  there  to  remain  a  matter  of  record. 
In  case  either  party  to  the  proceeding  shall  appeal  from  the 
valuation  to  the  next  term  of  the  court  granting  the  commission, 
and  give  reasonable  notice  to  the  opposite  party  of  such  appeal, 
the  court  shall  order  a  new  valuation  to  be  made  by  a  jury, 
which  shall  be  charged  therewith  at  the  same  term,  or  as  soon 
as  practicable,  and  their  verdict  shall  be  final  and  conclusive 
between  the  parties  unless  a  new  trial  shall  be  granted,  and  the 
lands  or  right  of  way  so  valued  by  the  commissioners  or  jury 
shall  vest  in  the  said  company  in  fee  simple  so  soon  as  the  valua- 
tion shall  be  paid,  or,  when  refused,  may  be  tendered  to  the 
extent  of  two  hundred  feet  wide.  When  there  may  be  an  appeal, 
as  aforesaid,  from  the  valuation  of  the  commissioners  by  either 
of  the  parties,  the  same  shall  not  prevent  the  work  intended  to 
be  constructed  from  proceeding,  but  where  the  appeal  is  by  the 
company  requiring  the  surrender,  it  shall  be  at  liberty  to  pro- 
ceed with  its  work  only  on  condition  of  giving  to  the  opposite 
party  a  bond  with  good  surety,  to  be  approved  by  the  clerk 
of  the  court  where  the  valuation  is  returned,  in  a  penalty  equal 
to  double  the  said  valuation  and  interest  in  case  the  same  may 
be  sustained,  and,  in  case  it  be  reversed,  for  the  payment  of  the 
valuation  thereafter  to  be  made  by  the  jury  and  confirmed  by 
the  court. 

11.  Right  of  way  in  absence  of  contract.— In  absence  of 

any  contract  with  the  said  company  in  relation  to  lands  through 


122     DECREES  RELATING  TO  NORTHWESTERN  BRANCH 

which  its  road  or  any  branch  thereof  may  pass,  signed  by  the 
owner  thereof,  or  by  its  agent,  or  any  claimant  or  person  in 
possession  thereof,  which  may  be  confirmed  by  the  owner 
thereof,  or  by  his  agent,  or  any  claimant  or  person  in  posses- 
sion thereof,  which  may  be  confirmed  by  the  owner,  it  shall  be 
presumed  that  the  land  upon  which  said  road  or  branch  may  be 
constructed,  together  with  a  space  of  one  hundred  feet  on  each 
side  of  the  center  of  said  road,  has  been  granted  to  the  com- 
pany by  the  owner  thereof,  and  the  said  company  shall  have 
a  good  right  and  title  thereto,  and  shall  have,  hold,  and  enjoy 
the  same  as  long  as  the  same  may  be  used  only  for  the  pur- 
poses of  the  road  and  no  longer,  unless  the  person  or  persons 
owning  the  said  land  [at  the  time  that  part  of  the  road  which 
may  be  on  said  land]  was  finished,  or  those  claiming  under 
him,  her,  or  them,  shall  apply  for  an  assessment  of  the 
value  of  said  lands  as  hereinbefore  directed,  within  five  years 
next  after  that  part  of  said  road  was  finished;  and  in  case  the 
said  owner  or  owners  or  those  claiming  under  him,  her,  or 
them,  shall  not,  within  five  years  after  the  said  part  was  fin- 
ished, apply  for  such  assessment,  he,  she,  or  they  shall  be  for- 
ever barred  from  recovering  said  land,  or  having  any  assess- 
ment or  compensation  therefor;  Provided,  Nothing  herein  con- 
tained shall  affect  the  right  of  feme  covert  or  infants,  under  two 
years  after  the  removal  of  their  respective  disabilities. 

This  section  is  a  literal  copy  of  sec.  25  of  the  original  charter  of  the 
Nashville  &  Northwestern  Railroad  Company,  and  the  words  placed  in 
brackets  were  omitted  in  the  decree,  and  are  now  supplied  for  what  it  is 
worth. 

12.  Intrusion,  penalty. — If  any  person  shall  intrude  upon 
the  said  railroad,  or  any  part  thereof,  by  any  manner  of  use 
thereof,  or  of  the  right  and  privileges  connected  therewith, 
without  the  permission  or  contrary  to  the  will  of  said  company, 
he,  she,  or  they  shall  forthwith  forfeit  to  the  said  company  all 
the  vehicles  that  may  be  intruded  on  said  road,  and  the  same 
may  be  recovered  by  suit  at  law,  and  the  person  or  persons  so 
intruding  may  also  be  indicted  for  a  misdemeanor,  and,  upon 
conviction,  fined  or  imprisoned,  or  both,  by  any  court  of  com- 
petent jurisdiction. 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         123 

13.  MaliciOUS  injury,  hOW  punished.— If  any  person  shall 
willfully  or  maliciously  destroy  or  in  any  manner  hurt,  dam- 
age, or  obstruct  the  said  railroad,  or  any  bridge  or  any  ve- 
hicles used  for  or  in  transportation  thereon,  shall  be  liable  to 
be  indicted  therefor,  and,  on  conviction,  shall  be  imprisoned 
not  more  than  six  nor  less  than  one  month  and  pay  a  tine  of 
not  less  than  twenty  ($20)  dollars,  and  shall  be  further  liable 
to  pay  all  the  expenses  of  repairing  the  same,  and  it  shall  not 
be  competent  for  any  person  so  otfending  against  the  provisions 
hereof  to  defend  himself  by  pleading  or  giving  in  evidence  that 
he  was  the  owner  or  agent  or  servant  of  the  owner  of  the  land 
where  such  destruction,  hurt,  damage,  injury  or  obstruction 
was  done  or  caused  at  the  time  the  same  was  caused  or  done. 

i-t.  Obstruction  a  public  nuisance.— Every  obstruction  to 

the  safe  and  free  passage  of  vehicles  on  the  said  road,  or  any 
branch  thereof,  shall  be  deemed  a  public  nuisance  and  may  be 
abated  as  such  by  any  officer,  agent,  or  servant  of  the  company, 
and  the  persons  causing  such  obstruction  may  be  indicted  and 
punished  for  erecting  a  public  nuisance. 

15.  Rates  Of  Storage. — Said  company  shall   have  the  right 
to  take  in  the  storehouses  they  may  establish  all  goods,  wares, 
merchandise,  and  produce  intended  for  transportation,  prescribe 
the  rules  of  priority,  and  charge  and  receive  such  just  and  rea- 
sonable compensation  for  storage  as  they,  by  rules,  may  estab- 
lish (which  they  shall   cause  to   be   published)  or  as  may  be 
affixed  by  agreement  with  the  owner,  which  may  be  distinct 
from   the  rates  of   transportation;    Prnvideil,    Said    company 
shall  not  charge  or  receive  storage  on  goods,  wares,  or  pro- 
duce which  may  l>e  delivered  to  it  at  its  regular  depositories, 
for  immediate  transportation,    and   which   the   company  may 
have  the  power  of  transporting  immediately. 

16.  Dividends,  hOW  paid. — The  profits  of  the  company,   or 
so  much  thereof  as  the  board  of  directors  may  deem  advisable, 
shall,  when  the  affairs  of  the  company  will  permit,  l>e  semi- 
annually  divided  among  the  stockholders  in  proportion  to  the 
stock  each  may  hold. 

17.  Banking  prohibited,  may  insure.— Said  company  is 


124     DECREES  RELATING  TO  NORTHWESTERN  BRANCH 

hereby  expressly  prohibited  from  carrying  on  any  banking- 
operations,  but  may  effect  insurance  on  lives  and  property 
transported  on  the  road. 

is.  Duty  in  crossing  roads  and  lands.— Whenever,  in  the 

construction  of  said  road,  or  any  branch  thereof,  it  shall  become 
necessary  to  cross  or  intersect  any  established  road  or  way,  it 
shall  be  the  duty  of  the  company  to  construct  said  road  across 
such  established  road  or  way  so  as  not  to  impede  the  passage  or 
transportation  of  persons  or  property  along  the  same,  or  where 
it  shall  be  necessary  to  pass  through  the  land  of  any  individual, 
it  shall  be  the  duty  of  said  company  to  provide  for  such  indi- 
vidual a  proper  wagon  way  or  ways  across  said  road  from  one 
part  of  his  land  to  another. 

19.  Exemption  from  road  and  military  duty.— The  presi- 
dent,  directors,  clerks,  agents,  officers,  and  servants  of  said 
company  shall  be  exempt  from  military  duty,  except  in  cases 
of    invasion   or  insurrection,   and  shall  also  be  exempt  from 
serving  on  juries  and  working  on  public  roads. 

20.  Exemption  from  taxation. — The  capital  stock  of   said 
company  shall  be  forever  exempt  from  taxation,  and  the  road, 
with  all  its  fixtures  and  appurtenances,  including  workshops, 
warehouses,   and  vehicles  of   transportation,   shall  be  exempt 
from  taxation  for  the  period  of  twenty  years  from  the  comple- 
tion of  the  road,  and  no  longer. 

21.  May  Construct  branch  roads.— Said  company  may  con- 
struct such  branches  and  extensions  of  its  present  line  of  rail- 
road as  may  from  time  to  time  be  determined  by  its  board  of 
directors. 

22.  Bonds  may  be  issued.— The  board  of  directors  of  said 
company  may,  from  time  to  time,  two-thirds  of  all  the  directors 
thereof  agreeing  thereto,  cause  to  be  issued  the  bonds  of  said 
company  for  such  amounts,  not  exceeding  twenty  thousand  dol- 
lars per  mile  of  the  entire  railroad  operated  and  controlled  by 
it,  as  may  be  necessary,  in  the  opinion  of  said  board  of  directors, 
to  carry  into  successful  operation  the  objects  and  purposes  of 
said  corporation. 

23.  May  purchase,  lease,  or  construct  lines.— The  board  of 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         125 

directors  of  said  company  may,  two-thirds  of  all  the  directors 
thereof  agreeing  thereto,  extend  its  line  of  railroad  -to  such 
points  as  may  be  determined  by  said  board,  and  for  this  pur- 
pose may  acquire  by  purchase  or  lease  other  railroads,  or  con- 
struct new  lines  of  railroad  as  may,  from  time  to  time,  be  de- 
termined by  said  board. 

24.  Additional  powers. — Said  company  shall  possess  such  ad- 
ditional powers  as  may  be  convenient  for  the  due  and  successful 
execution  of  the  powers  granted  hereby,  and  for  the  successful 
construction  and  management  of  the  work. 

It  is  further  ordered  that  the  Nashville  &  Chattanooga  Rail- 
road Company  pay  the  costs  of  this  proceeding,  for  which 
execution  may  issue,  and  when  the  same  shall  be  paid,  the  clerk 
and  master  will  issue  a  certified  copy  of  this  decree  for  regis- 
tration. 

Decree  entered  in  minute  book  "V,"  pp.  185-192  of  chan- 
cery court  at  Nashville,  Tenn.,  May  14,  1872. 

There  is  no  question  but  that  the  chancery  court  had  authority  to 
change  the  name  of  the  company  as  before  explained,  but,  as  to  the 
other  amendments,  see  discussion  herein  of  "chancery  court  amend- 
ments." Refer  to  index. 

ACTS  OF  KENTUCKY  RELATING  TO  THE  NASH- 
VILLE &  NORTHWESTERN  RAIL- 
ROAD COMPANY. 

1.  Charter  of  Nashville  &  Northwestern  Railroad  Company 

granted  by  the  State  of  Kentucky. 
SECTION  i.   Incorporation,  general  powers.— #<?  it  enacted 

by  tli?  Commonwealth  of  Kentucky ^  That  an  act  to  incorporate 
the  Nashville  &  Northwestern  Railroad  Company,  passed  by 
the  legislature  of  the  State  of  Tennessee  on  the  twenty-second 
of  January,  1852,  together  with  the  several  amendments  thereto 
made  by  the  said  legislature  of  the  State  of  Tennessee,  passed 
February  28,  1852,  and  February  15,  1854  [this  act  then  sets 
out  the  charter  of  the  road,  as  passed  by  the  legislature  of 
Tennessee,  which  is  omitted  here  for  economy.  See  Tennessee 
charter,  in  preceding  chapter],  be,  and  the  same  are  hereby, 
re-enacted  and  adopted,  with  all  the  privilege*,  jfamoAtMf,  pmr- 


126  ACTS    RELATING    TO    NORTHWESTERN    BRANCH 

er$,  and  responsibilities  conferred  and  granted  by  said  charter, 
so  far  as.  the  same  are  applicable  and  not  inconsistent  with  the 
constitution  of  Kentucky,  to  enable  the  said  Nashville  &  North- 
western Railroad  Company  to  continue  their  line  of  railway  to 
the  city  of  Hickman,  in  Fulton  county,  Kentucky.  This  act 
to  take  effect  from  its  passage.  (Acts  Ky. ,  1856;  passed  March 
8,  1856.) 

1.  This  act  made  the  Nashville  &  Northwestern  Railroad  Company  a 
domestic  corporation  of  Kentucky. 

The  fact,  however,  that  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way subsequently  purchased  it  would  not  make  the  latter  corporation  a 
domestic  one  there.  The  Nashville.  Chattanooga  &  St.  Louis  Railway 
is  a  foreign  corporation  in  Kentucky,  though  it  operates  this  road,  with 
all  its  franchises,  in  that  state.  For  franchise  rights,  privileges,  etc.,  of 
this  road,  see  Tennessee  charter,  in  preceding  chapter. 

2.  The  acts  referred  to  in  the  above  act,  as  having  been  passed  by  the 
legislature  of  Tennessee  on  February  15,  1854,  was  passed  on  February 
1,  1854. 

3.  For  the  two  acts  referred  to  above  as  having  been  passed  by  the 
legislature  of  Tennessee  on  February  28.  1852.  and  February  1,  1854,  see 
Acts  of  Tennessee  relating  to  Nashville  &  Northwestern  Railroad  Com- 
pany, preceding. 

4.  The  above  act  of  Kentucky  was  amended  by  act  passed  February 
17,  1868.     See  act  immediately  following. 

2.  Charter  re-enacted;  State  of  Tennessee  given  statutory 
lien  on  that  part  of  road  in  Kentucky  as  security  for 
bonds  issued,  when. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the 
Commonwealth  of  Kentucky,  That  the  act  approved  March  8, 
1856,  entitled  ';An  act  to  incorporate  the  Nashville  &  North- 
western Railroad  Company,''  be,  and  the  same  is  hereby,  re- 
enacted,  with  all  the  rights,  privileges,  and  immunities  con- 
ferred on  said  company  by  said  act. 

SEC.  2.  That  the  statutory  lien  reserved  by  the  State  of  Ten- 
nessee for  the  security  of  the  bonds  of  said  state  heretofore  or 
hereafter  to  be  issued  to  said  Nashville  &  Northwestern  Rail- 
road Company,  and  the  accruing  interest  on  the  roadbed,  right 
of  way,  grading,  bridges,  and  masonry,  upon  all  the  uncol- 
lected  stock  subscribed  to  such  road,  and  upon  the  iron  rails, 

chairs,  spikes,  and  equipments  on  the  whole  road, 
Lien. 

superstructure,    equipments  and   rolling  stock,  as 

far  as  completed  or  acquired,  and  upon  all  property  owned  by 
the  company  or  incident  to  or  necessary  for  its  business,  as 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.          127 

well  us  such  property  and  effects  hereafter  acquired,  as  the 
property  and  effects  now  owned  and  Assessed,  be,  and  the 
same  is  hereby,  extended  to  the  property  of  said  company  in 
the  State  of  Kentucky,  or  which  may  hereafter  be  brought 
into  this  state,  and  the  State  of  Tennessee  may  enforce  its  said 
lien  at  any  time  on  said  property  and  effects  by  proper  pro- 
ceedings in  the  courts  of  this  state,  without  security,  How  JJen 
except  for  costs,  and  have  the  same  delivered  up  to  enforce(1- 
it,  whether  the  road  is  still  run  by  the  Nashville  &  Northwest- 
ern Railroad  Company,  and  the  affairs  of  the  company  managed 
by  said  company,  or  by  the  state,  or  some  receiver,  or  other 
officer  appointed  by  the  state  authorities,  or  the  courts  of  Ten- 
nessee. 

SEC.  3.  That  this  act  shall  be  and  inure  as  a  statutory  lien 
in  the  State  of  Kentucky,  without  either  registration  or  record, 
upon  all  the  property  and  effects  of  every  nature  statutory 
and  kind  now  owned  or  which  may  hereafter  be  llen- 
acquired  by  said  Nashville  &  Northwestern  Railroad  Company 
in  favor  of  the  State  of  Tennessee  for  the  security  of  its  bonds 
issued  to  the  said  company  or  in  aid  thereof,  and  of  the  interest 
accruing  thereon. 

SEC.  4.   Nothing  contained  in  this  act  shall  be  construed  so 
as  to  defeat  any  bona  Jidn  lien  now  held  by  any  citizen  of  the 
State  of  Kentucky  on  that  part  of  the  Nashville  & 
Northwestern    Railroad,    roadbed,    right    of   way, 
grading,  bridges,  and  masonry,  situate,  lying,  and  being  within 
the  territorial  limits  of  the  State  of  Kentucky,  except  so  far  as 
the  same  may  be  enhanced  in  value  by  bonds  hereafter  issued 
to  said  railroad  company  by  the  State  of  Tennessee.     This  act 
to  take  effect  from  and  after  its  passage.     (Acts  Ky.,  1$6S; 
passed  February  17.) 

See  7  Hush  (Ky.),  118. 

3.  Hickman  &  Obion  Railroad  Company  authorized  to  sell 
their  road  to  Nashville  &  Northwestern  Railroad  Com- 
pany. 

Be  it  enacted,  That  the  charter  of  the  Hickman  &  Obion  Rail 
road  Company  be  so  amended  as  to  authorize  the  board  of  direct- 


128  ACTS    RELATING    TO    NORTHWESTERN    BRANCH 

ors  of  said  company  to  sell  their  road  absolutely  to  the  Nash- 
ville &  Northwestern  Railroad  Company  of  Tennessee;  Provided, 
That  no  sale  made  by  said  board  shall  be  binding  on  the  stock- 
holders, unless  the  same  shall  be  submitted  to  a  special  meeting 
of  the  stockholders  and  shall  be  voted  for  by  a  majority  in  in- 
terest of  said  stockholders.  (Acts  Ky.,  1855-56,  ch.  142,  p. 
281;  approved  February  9,  1856.) 

The  Hickman  &  Obion  Railroad  Company  was  chartered  by  Acts  Ky., 
1853-54,  ch.  781,  p.  348,  and  by  Acts  Tenn.,  1853-54,  ch.  307,  p.  683.  The 
two  acts  are  identical.  See  Tennessee  charter  heretofore  inserted  in 
this  chapter  as  a  note  to  ActS'Tenn.,  1855-56,  ch.  3,  authorizing  the  Nash- 
ville &  Northwestern  Railroad  Company  to  purchase  or  lease  the  Hick- 
man «fe  Obion  Railroad. 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.         129 


CHAPTER   V. 

THE  TENNESSEE  A  PACIFIC  RAILROAD  COMPANY. 
(LEBANON  BRANCH.) 

The  capital  stock  in  this  road  was  purchased  by  the  Nashville,  Chattanooga  A  St.  Louis 
Railway  before'its  purchase  of  the  Winchester  A  Alabama  Railroad,  and  hence  its  charter 
and  acts  relating  thereto  are  first  inserted,  though  the  deed  to  the  road  was  not  executed 
until  several  months  after  the  execution  of  the  deed  to  the  Winchester  A  Alabama  Railroad, 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— The  Tennessee  &  Pacific  Railroad  was  sold  to  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  on  October  1,  1877,  in 
pursuance  of  a  resolution  of  the  stockholders  of  said  Tennessee 
&  Pacific  Railroad  Company,  adopted  at  their  convention  at 
Nashville  on  September  12,  1877,  and  that  of  its  directors, 
passed  on  the  first  day  of  October,  1877.  The  deed  to  the  same 
is  on  record  in  the  register's  office  of  Davidson  county,  Ten- 
nessee, in  book  58,  p.  537.  It  is  also  inserted  in  this  compila- 
tion. See  next  chapter. 

A  resolution  had  previously  been  adopted  by  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  September  12,  1877,  rati- 
fying the  purchase. 

Prior  to  the  date  of  this  conveyance  the  entire  capital  stock 
of  the  Tennessee  &  Pacific  Railroad  Company,  with  possibly  a 
small  exception,  was  owned  by  the  counties  of  Davidson  and 
Wilson.  The  majority  was  owned  by  Davidson  county.  This 
stock  was  also  purchased  by  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  Company  from  said  counties,  as  will  fully  appear 
from  the  records  in  the  county  court  of  Wilson  county,  in 
minute  book  "E,"  pp.  302-5,  and  pp.  348-51. 

Previous  to  the  purchase  of  the  road  and  stock  by  the  Nash- 
ville, Chattanooga  <&  St.  Louis  Railway,  as  above  set  out,  the 
Tennessee  &  Pacific  Railroad  Company  had  l>ecome  indebted  to 
the  State  of  Tennessee  for  bonds  indorsed  by  its  governor  to 
aid  in  its  construction.  This  indebtedness  was  secured  by  a 

9 


130  HISTORICAL    SKETCH    OF    THE    LEBANON    BRANCH 

statutory  lien  or  mortgage  on  the  road.  On  March  28,  1872, 
the  legislature  of  the  state  passed  an  act  [Acts  1872,  p.  27,  ch. 
6,  ex.  ses.],  authorizing  this  indebtedness  to  be  compromised 
upon  the  payment  by  the  board  of  directors  of  said  road  of 
$300,000  in  bonds  of  the  state,  with  coupons  since  January, 
1871,  attached,  one-fourth  cash,  or  twenty  days  thereafter,  and 
the  balance  in  one,  two,  and  three  years  thereafter.  The 
Nashville,  Chattanooga  &  St.  Louis  Railway,  under  and  by 
virtue  of  this  act,  subsequently  settled  with  the  State  of  Ten- 
nessee, paying  the  $300,000,  as  provided  therein,  and  thus 
secured  a  clean  title  to  the  road.  The  said  Act  of  1872  is  in- 
serted in  the  next  chapter. 

1.  Legality  of  the  purchase  of  the  road. — The  purchase  of  this  rail- 
way by  the  Nashville.   Chattanooga  &    JSt.    Louis  Railway  was  legal. 
Under  the  Acts  of  Tennessee,  1871,  ch.  69,  which  superseded  the  Acts  of 
1871,  ch.   22,  it  was  provided  that  ''every  railroad  corporation  in  this 
state,  whether  created   under  a  general  or  special  law,  shall  have  the 
power  to  acquire,  by  purchase  or  other  lawful  contract,  and  have,  hold, 
xise,  and  operate  any  railroad,  with  its  francliises,  belonging  to  any  other 
railroad  corporation." 

2.  Legality  of  the  purchase  of  the  stock. — The  purchase  of  this  stock 
by  the   Nashville,  Chattanooga  &    St.    Louis    Railway  was   also  legal, 
tinder  the  Acts  of  Tenn..   1869-70,  ch.  49,  sec.  4,  ail  railroad  companies 
of  this  state  were  allowed  to  subscribe  for  or  purchase  the  stock  and 
bonds,  or  either,  of  any  other  railroad  company,  when  their  roads  con- 
nected iJircctly  or  by  intervening  railroads. 

3.  Consideration. — For  the  consideration  paid  for  the  road,  see  deed 
to  same,  in  next  chapter. 

4.  The  ownership  of  the  stock  by  Wilson  and  Davidson  counties 
legal. — Hy  Acts  Tenn.,  1868-9.  ch.  11,  p.  93.  sec.  29,  Wilson  and  Davidson 
counties  were  authorized  to  subscribe  for  stock  in  the  Tennessee  &  Pacific 
Railroad  Company. 

What  franchises,  etc.,  passed  under  this  sale.— in  addition 

to  the  road  and  other  property  conveyed,  the  deed  specifically 
transferred  all  the  rights,  privileges,  immunities,  franchises, 
and  easements  of  said  Tennessee  &  Pacific  Railroad  Company 
to  the  Nashville,  Chattanooga  &  St.  Louis  Railway.  These 
rights,  privileges,  immunities,  and  franchises  are  largely  set 
out  in  the  charter  of  the  said  Tennessee  &  Pacific  Railroad 
Company,  but  it  will  be  noticed  that  section  15  of  said  charter 
also  conveys  to  the  company  all  the  rights,  easements,  and 
franchises  of  the  Nashville  cfc  Chattanooga  Railroad  Company. 
This  being  so,  the  latter  company,  as  a  lawful  purchaser,  is 
now  entitled,  on  that  line  of  road,  to  all  the  rights,  privileges, 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         131 

and  franchises  contained  in  its  own  charter  as  well  as  that  of 
the  Tennessee  &  Pacific  Railroad  Company. 

1.  The  legislature,  in  granting  a  charter  to  one  railway,  may  lawfully 
confer  upon  it  all  the  rights,  easements,  and  franchises  of  another  by 
simply  referring  to  it  in  the  manner  that  this  was  done.  See  8  Lea,  427. 

ti.  For  franchises,  etc.,  contained  in  charter  of  Nashville  &  Chatta- 
nooga Kailroad  Company,  see  chapter  1.  See,  also,  discussion  herein 
under  Eminent  Domain,  Right  of  Way.  liefer  to  index. 

Width  Of  right  Of  way. — As  sec.  15  of  the  charter  of  the 
Tennessee  &  Pacific  Railroad  Company  conferred  upon  it  all 
the  rights,  easements,  and  franchises  of  the  Nashville  &  Chatta- 
nooga Railroad  Company,  the  latter  company,  as  the  lawful 
purchaser  thereof,  is  now  entitled,  over  the  line  of  this  road 
from  Nashville  to  Lebanon,  to  all  the  rights  and  privileges 
conveyed  in  sees.  23  and  24-  of  its  own  charter,  which  give  a 
hundred  feet  on  each  side  of  the  center  of  said  road,  when  nec- 
essary for  railway  purposes,  in  the  absence  of  any  contract  with 
the  original  landowner  to  the  contrary.  5  Pickle  (Tenn.),  293. 

For  a  discussion  of  this  and  kindred  subjects,  together  with  the  right 
and  method  of  taking  more  than  one  hundred  feet  on  each  side  of  the 
road,  when  necessarj-.  for  railroad  purposes,  see  Eminent  Domain.  Ritjht 
of  Way,  herein.  Refer  to  index. 

Where  Tennessee  &  Pacific  Railroad  Company  incorporated ; 

termini. — The  Tennessee  &  Pacific  Railroad  Company  was  char- 
tered by  the  State  of  Tennessee,  Acts  1865-66,  ch.  88,  p.  252, 
the  eleventh  section  of  which  provided  that  the  said  road  should 
be  located  on  the  nearest  and  most  practicable  route  from 
Knoxville  to  Nashville,  and  from  Nashville  to  Jackson,  and 
from  Jackson  to  Memphis. 

Distance  built  when  purchased  by  Nashville.  Chattanooga 

&  St.  Louis  Railway. — Only  the  road  from  Nashville  to  Leba- 
non was  completed  when  purchased,  and  no  extension  has  since 
been  made  under  this  charter. 

ORIGINAL    CHARTER    OF    THE    TENNESSEE    & 
PACIFIC  RAILROAD  COMPANY. 

[Acts  Tenn.,  1865-06,  ch.  88,  p.  252.] 

SECTION  i.  Incorporation,  name,  general  powers.— Be  it 

enacted  by  the  General  Assembly  of  the  State  of  Tennessee,  That 
the  formation  of  a  company  is  hereby  authorized  which,  when 


132  ORIGINAL    CHARTER    OF    THE    LEBANON    BRANCH 

formed,  shall  be  a  body  corporate  by  the  name  and  style  of  the 
"Tennessee  &  Pacific  Railroad  Company,"  and  by  such  cor- 
porate name  shall  be  capable  in  law  to  buy,  receive  by  gift, 
hold,  sell,  and  convey  real  and  personal  estate  as  hereinafter 
provided,  make  contracts,  sue  and  be  sued,  to  make  by-laws, 
and  do  all  lawful  acts  properly  incident  to  corporations  and  to 
the  business  for  which  it  is  hereby  incorporated,  and  to  have 
and  use  a  common  seal,  the  same  to  destroy  at  its  pleasure, 
and  shall  have  succession  for  ninety-nine  years  of  members  as 
hereafter  provided. 

The  corporate  existence  of  this  company  has  ceased,  though  its  rights, 
privileges,  and  franchises  are  possessed  and  exercised  by  the  Nashville, 
Chattanooga  &  St.  Louis  Railway.  For  its  general  powers,  see  chapter 
1,  herein. 

SEC.  2.  Value  of  shares,  books  opened,  commissioners.—^* 

it  further  enacted,  That  books  for  the  subscription  of  two  hun- 
dred thousand  shares  of  the  capital  stock  of  said 

Stock,  books 

company  of  fifty  dollars  each  shall  be  opened  on 
the  first  Monday  of  1866,  and  shall  be  kept  open  for  one  hun- 
dred days,  Sundays  excepted,  between  the  hours  of  ten  o'clock 
in  the  morning  and  four  o'clock  in  the  evening  of  each  of  those 
days  at  the  following  places  and  by  the  following  named  per- 
where  o  ened  sons:  At  Nashville,  Tennessee,  Joseph  W.  Allen, 
and  by  whom.'  M  Burns,  A.  Nelson,  A.  B.  Shankland,  A.  V.  S. 
Lindsley,  Sam.  J.  Carter,  T.  D.  Fite,  W.  M.  Cook,  A.  G. 
Sanford,  A.  Halitton,  John  Kirkman,  Jacob  McGavock,  A.  H. 
Stephens,  J.  P.  Campbell,  J.  W.  Paramore,  N.  Derby,  - 
Budake,  and  H.  G.  Scovel;  at  Lebanon,  Wilson  county,  Dr. 
John  D.  Owens,  Sam.  Matley,  Win.  M.  Faurt,  J.  R.  Davis, 
Matthew  Hawkins,  T.  W.  Edwards,  William  B.  Campbell,  and 
B.  J.  Tarver;  at  New  Middleton,  Smith  county,  B.  F.  C. 
Smith,  Sterling  Ward,  James  G.  Bridges,  James  Burnett,  M. 
D.  Mason,  John  Yeton,  and  E.  Upton;  at  Alexandria,  DeKalb 
county,  William  Floyd,  T.  J.  Ford,  W.  L.  Waters,  and  John 
D.  Furan;  at  Cookeville,  Putnam  county,  Holland  Denton,  B. 
D.  Hunter,  Stephen  M.  Burton,  -  -  Douglas,  and  James  Mc- 
Kinney;  at  Livingston,  Overton  county,  J.  D.  Goodpasture, 
James  M.  Armstrong,  J.  M.  Goodbar;  at  Montgomery,  Mor- 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.          133 

gan  county,  E.  Miles,  W.  J.  Scott,  Elssee  Burrell,  and  S.  C. 
Honeycutt;  at  Clinton,  Anderson  county,  William  Wallace, 
John  Ross,  James  A.  Daughty,  and  George  Leath;  at  Knox- 
ville,  Knox  county,  John  C.  Van  Gilder,  James  Armstrong, 
John  Williams,  Joseph  Logan,  James  C.  Luttrell,  James  C. 
Moses,  Perex  Dickinson,  and  William  Heiskell;  at  Sparta, 
White  county,  George  Dihril,  J.  F.  Vass,  Dr.  F.  Snodgrass, 
H.  L.  Carvicke,  Samuel  Parker. 

SEC.  3.  Subscription  tO  StOCk,  payment.—^  it  further  en- 
acted, That  the  said  commissioners,  or  a  majority  of  them,  at 
each  of  the  places  aforesaid,  shall  receive  subscription  for  stock 
in  the  said  railroad  company,  during  the  time  the  said  books 
are  hereinbefore  directed  to  be  kept  open,  and  on  each  share  so 
subscribed,  shall  demand  and  receive  one  dollar,  without  which 
the  subscription  shall  be  void. 

SEC.  4.  Deposit  of  money ;  commissioners ;  incorporation 

perfected,  When. — Be  it  further  enacted,  That  as  soon  as  the 
time  for  receiving  subscription  aforesaid  shall  have  expired, 
the  said  commissioners  shall  respectively  dejwsit  all  DeDOSjt|n 
the  money  so  received  by  them  in  some  national  bank- 
bank  doing  business  in  this  state,  to  the  credit  of  the  Tennessee 
&  Pacific  Railroad  Company,  and  subject  to  the  orders  of  the 
president  and  the  board  of  commissioners  hereinafter  provided 
for  and  appointed,  and  shall  also  forward  a  correct  list  of  the 
subscrH>ers,  as  well  as  the  amount  of  stock  each  one  shall  have 
subscribed  to  the  stock  of  said  company,  to  said  board  of  com- 
missioners, to  be  composed  of  the  following  persons,  viz. :  John 
P.  Campbell,  John  Kirkman,  A.  Nelson,  S.  E.  Hare,  Charles 
H.  Erwin,  H.  A.  Sanford,  A.  Hamilton,  Joseph  W.  Allen,  J. 
J.  Swiggart,  John  13.  Johnson,  J.  C.  Parkhurst,  Commissloll. 
H.  A.  Duncan,  W.  T.  Berry,  James  Whitworth,  ers< 
W.  L.  Waiters,  John  W.  Bowen,  G.  W.  Keith,  John  C.  Van- 
Guilder,  John  Williams,  Sam'l  Morgan,  Win.  Bossen,  J.  W. 
Paremore,  A.  H.  Stephens,  E.  H.  East,  and  Stephen  M.  Bur- 
ton, who,  or  a  majority  of  whom,  shall  constitute  a  quorum  to 
do  business.  And  said  commissioners,  immediately  after  the 
passage  of  this  act,  or  as  soon  thereafter  as  convenient,  shall 


134r  ORIGINAL    CHARTER    OF    THE    LEBANON    BRANCH 

meet  in  the  city  of  Nashville,  choose  a  president,  establish  rules 
to  govern  their  proceedings,  appoint  such  other  officers  and 
agents  as  they  may  think  proper,  and  prescribe  their  duties. 
They  shall  have  power,  and  are  hereby  directed,  to  appoint  an 
agent  or  agents,  to  solicit  stock  in  said  corporation,  in  any 
state  or  country;  and  said  board  of  commissioners  shall  ascer- 
tain, from  time  to  time,  the  whole  number  of  shares 
Organization.  .  .  .  ,  ,  , 

taken  in  said  company;  and  as  soon  as  the  number 

of  five  thousand  shares  shall  have  been  subscribed,  on  which 
the  sum  of  one  dollar  per  share  shall  have  been  paid,  the 
Tennessee  &  Pacific  Railroad  Company  shall  be  regarded  as 
formed,  and  thenceforth  and  from  that  date  the  said  subscribers 
of  the  said  stock  shall  form  a  body  politic  and  corporate  in  fact 
and  in  law,  by  the  name  and  for  the  purposes  aforesaid,  and  in 
all  things  to  be  represented  by  the  board  of  commissioners 
aforesaid,  under  a  board  of  directors  hereinafter  prescribed. 

SEC.  5.  Commissioners  survey  route,  when;  books  kept 

Open,  When;  increase  Of  Capital. — Be  it  farther  enacted,  That 
upon  the  fact  being  ascertained  of  the  subscription  of  five  thou- 
sand shares  aforesaid,  and  the  payment  aforesaid  of  one  dollar 
per  share  to  the  stock  of  said  company,  the  board 
of  commissioners  may  proceed  to  survey  the  route 
of  said  road  and  estimate  the  cost  of  its  construction.      Never- 
theless, no  conclusive  and  binding  location  of  said  road  shall  be 

O 

made  by  the  commissioners,  but  the  same  shall  be  left  to  the 
determination  of  the  first  board  of  directors,  chosen  by  the 
stockholders  in  the  manner  hereinafter  directed;  and  the  said 
board  of  commissioners,  by  themselves  or  agent,  at  such  times 
and  places  as  they  shall  deem  proper,  and  upon  such  terms  as 
to  times  and  places  as  they  may  think  proper,  shall  continue  to 
Additional  receive  additional  subscriptions  until  the  number  of 
subscription.  R-^v  thousand  shares  shall  have  been  subscribed  to 
the  capital  stock  of  said  company;  and  for  the  residue  of  one 
hundred  thousand  shares,  the  said  corporation,  when  organized, 
may  continue,  in  like  manner,  to  receive  additional  subscrip- 
increase  tions;  Provided,  That  the  directors,  chosen  by  the 

stockholders  of  said  company  in  the  manner  herein- 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.         135 

after  directed,  shall  have  power  to  increase  the  number  of  shares 
in  said  company  to  the  amount  necessary  to  complete  said  road. 

Six .  (i.  President  and  number  of  directors,  how  chosen.— 

H<  /f  further  enacted,  That  the  affairs  of  said  company  shall  be 
managed  by  a  board  of  fifteen  directors,  any  eight  of  whom 
shall  constitute  a  quorum  to  do  business,  thirteen  of  whom  shall 
be  chosen  by  the  stockholders,  in  the  manner  hereinafter  pro- 
vided, and  two  of  whom  shall  be  appointed  and  commissioned 
by  the  governor;  and  a  president  of  the  company  shall  be  elected 
by  the  directors,  from  their  own  number,  in  such  a  manner  as 
the  board  of  directors  may  prescribe. 

This  road  has  been  purchased  by  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  whose  directors  control  it  as  a  part  of  its  general  system. 
The  number  and  method  of  electing-  directors  is  therefore  now  controlled 
by  the  charter  of  said  Nashville,  Chattanooga  &  St.  Louis  Railway.  See 
en.  1,  sees.  8  and  9,  herein. 

SEC.  7.  First  election  Of  directors.—^  it  further  enacted, 
That  at  the  first  election  for  directors  the  board  of  commissioners 
shall  have  the  power  to  appoint  three  judges  and  two  clerks, 
for  the  purpose  of  holding  said  elections;  and  upon  the  certifi- 
cates of  said  judges  the  persons  so  elected  directors  shall  be 
authorized  to  qualify  as  directors. 

SEC.  8.  Annual  election  of  directors,  powers.— Be  it  fur- 
ther enacted,  That  in  order  to  continue  the  succession  of  pres- 
ident and  directors  of  said  company,  thirteen  directors  shall  be 
chosen  annually  by  the  stockholders  of  said  com-  Annual 
pany,  at  such  times  and  places  as  the  president  and  electlon- 
directors  may  designate,  giving  thirty  days'  notice  of  the  same 
in  one  or  more  newspapers  published  in  the  cities  of  Nashville 
and  Knoxville;  and  two  directors  shall  be  appointed  and  com- 
missioned annually  by  the  governor;  and  the  directors  thus 
chosen  and  appointed  of  said  company  shall  have  power  to  ap- 
point judges  and  clerks  of  all  elections,  and  to  elect  a  presi- 
dent from  among  the  members  of  said  board  of  directors,  and 
to  allow  him  such  pay  for  his  services  as  they  may  think 
proper;  and  if  any  vacancy  occur  by  death,  resignation,  or 
otherwise,  of  any  president  or  directors,  before  the  time  he 
was  elected  for  has  expired,  a  person  to  fill  such  vacancy  for 


136      ORIGINAL  CHARTER  OF  THE  LEBANON  BRANCH 

the  unexpired  time  shall  be  appointed  by  the  president  and 
Powers  of  directors;  and  the  president  and  directors  shall  hold 
directors.  an(j  exercise  their  offices  until  their  successors  are 
elected  and  qualified.  If  the  time  fixed  by  a  by-law  of  the  cor- 
poration for  holding  the  annual  election  of  directors  shall  have 
passed  without  the  holding  of  an  election  for  directors,  the 
corporation  shall  not  be,  on  that  account,  dissolved,  but  it  shall 
be  lawful  on  any  other  day  to  hold  and  make  such  election. 

This  road  is  now  owned  by  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  whose  directors  control  it  as  a  part  of  its  general  system.  The 
directors  of  the  general  system  are  now  elected  under  the  charter  of 
the  Nashville,  Chattanooga  &  St.  Louis  Railway.  See  ch.  1,  sees.  8,  9,  10, 
herein. 

SEC.  9.  Oath  of  president  treasurer's  bond.— Beit  further 

enacted,   That  the  president  and  directors,   before  they  act  as 
such,  shall  make  oath  or  affirmation  that  they  will 
well  and  faithfully  discharge  the  duties  of  their 
respective  offices,  to  the  best  of  their  skill  and  ability;  and  the 
said  president  and  directors  shall  have  power  to  appoint  a  treas- 
urer of  said  company  and  to  require  of  him  a  bond  in  such  pen- 
alties, with  such  securities,  as  they  may  prescribe, 
payable  to  said  company,  and  conditioned  for  the 
faithful   keeping  and  disbursing  all  money  that  may  come  into 
his  hands  as  treasurer  of  said  company,  and  with  such  other 
conditions  as  they  may  prescribe,  upon  which  said  bond  a  re- 
covery may  be  had  for  a  breach  of  the  condition  thereof  by 
suit  in  the  corporate  name  of   said   company  in  any  of  the 
courts  of  this  state  having  jurisdiction  thereof;  and  the  board 
of  directors,  in  the  absence  of  the  president,  may  fill  his  place 
by  electing  one  of  their  members  president  pro  tempore. 

SEC.  10.  Liability  Of  directors. — Be  it  further  enacted,  That 
the  board  of  directors  shall  not  exceed  in  their  contracts  the 
Not  to  exceed  amoun^  °f  the  capital  of  the  corporation  or  the 
funds  the  funds  of  the  company  may  have  bor- 
rowed or  the  amount  of  the  state  aid  hereinafter  provided  for 
and  which  may  be  placed  at  the  disposal  of  the  board;  and,  in 
case  they  should  do  so,  the  president  and  directors,  at  any 
meeting  at  which  the  contracts  so  exceeding  the  amounts  afore- 


NASHVILLE,    CHATTANOOGA    A    8T.     LOUIS    RAILWAY.          137 

said,  and  voting  for  the  same,  and  not  voting  against 

Liability. 

it,  shall  be  jointly  and  severally  liable  for  such  ex- 
cess, l>oth  to  the  contractors  and  corporation. 

For  the  liability  of  directors  of  the  general  system  of  which  this  road 
now  forms  a  part,  see  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  sec.  12. 

SEC.  11.  Construction,  when  to  commence;  rate  of  charge; 

route. — Be  it  fartlier  enacted,  That  said  company  shall  have 
power  and  may  proceed  to  construct  said  railroad  Whento 
as  sjKiedily  as  their  means  will  permit,  and  may  use  a"""1"1"- 
any  section  of  said  road,  by  them  to  be  constructed,  before  the 
whole  is  completed,  subject  to  the  same  rates  that 
other  railroads  in  this  state  are  allowed  by  law  to 
charge;  Provided,  Said  railroad  shall  be  located  on  the  nearest 
and  most  practicable  route  from  Knoxville  to  Nashville,  and 
from  Nashville  to  Jackson,   and  from  Jackson  to 
Memphis,  to  be  ascertained  by  the  survey  herein- 
before authorized  and  directed;  and  said  company  have  the  ex- 
clusive right  of  carrying  and  transporting  Arsons,  goods,  mer- 
chandise, and  all  freight  and  produce,  over  said  road  by  them 
to  be  constructed,  subjected  to  the  same  rates  hereinbefore  pre- 
scribed and  directed. 

As  to  rate  of  charge,  see  notes  to  sec.  14  of  charter  of  Nashville  & 
Chattanooga  Railroad  Company,  chap.  1. 

SEC.  12.  Installments,  forfeiture  of  shares.—^  it  further 

enacted,  That  the  board  of  directors  may  call  for  the  payment 
of  forty-nine  dollars  on  each  share,  in  sums  not  ex- 
ceeding five  dollars  at  any  one  time;  thirty  days' 
notice  of  which  shall  first  be  given  in  one  or  more  newspapers 
published  in  the  cities  of  Nashville  and  Knoxville,  and  a  failure 
to  pay  after  such  notice,  or  to  secure  the  same  to  be  paid,  ac- 
cording to  the  rules  of  the  company,  any  of  the  installments  so 
called  as  aforesaid,  shall  work  a  forfeiture  of  the  share  or  shares 
on  which  default  shall  be  made,  and  all  payments  thereon;  and 
the  same  shall  vest  in  and  belong  to  said  company;  but  the 
board  of  directors  may,  upon  the  owner  or  owners  thereof  pay- 
ing all  arrearages  on  such  share  or  shares,  with  all  Forfe|tures 
costs  which  may  have  accrued,  and  the  interest  there-  etc* 


138      ORIGINAL  CHARTER  OF  THE  LEBANON  BRANCH 

on,  restore  the  same;  or  the  directors  may  revive  the  forfeiture 
after  thirty  days  and  sue  the  stockholder  or  stockholders,  at 
their  discretion. 

SEC.  is.  Transfer  of  stock,  increase  of  capital.— Beit  fur- 
ther enacted,  That  the  stock  in  said  company  may  be  transferred 
in  such  manner  and  form  as  may  be  directed  by  the  by-laws  of 
said  corporation;  and  said  company  may  increase  the  capital 
Ma  increase  stock  to  a  sum  sufficient  to  complete  said  railroad 
capital.  j-he  wnoje  distance  between  Knoxville  and  Mem- 

phis, upon  the  nearest  and  most  practicable  route,  to  be  ascer- 
tained as  hereinbefore  provided,  and  to  stock  said  railroad  with 
everything  necessary  to  put  it  in  complete  operation,  either  by 
opening  books,  from  time  to  time,  for  new  stock,  or  by  bor- 
rowing money  upon  the  credit  of  the  company,  and  in  the  man- 
ner which  it  may  be  done  in  either  case,  shall  be  prescribed  by 
the  by-laws  of  said  corporation;  and  any  state,  citizen,  or  cor- 
poration, or  company,  of  this  or  any  other  state  or  country, 
may  subscribe  for  and  hold  stock  in  said  company. 

See  notes  to  sec.  16  of  charter  of  Nashville  &  Chattanooga  Railroad 
Company,  ch.  1,  herein. 

SEC.  14.  Qualification  of  officers  and  voters,  proxy,  scale 

Of  voting. —  Be  it  further  enacted,  That  any  person  who  is  the 

owner  of  one  or  more  shares  of  stock,  in  his  own  right,  and 

who  has  been  the  owner  of  the  same  three  months  (except  at 

Eligibility         ^e  ^rs^  electi°n)>  shall  be  eligible  to  hold  any  office 

in  said  company;  and  every  person  must  have  owned 

the  share  or  shares,  on  which  he  offers  to  vote,  at  least  three 

months,  except  at  the  first  election;  and  stockholders  may  vote 

in   person  or   by  proxy,  given  in  writing,  and   in 

voting  for  directors,  or  on  any  question  which  may 

come  before  a  meeting  of  the  stockholders,  or  which  may  be 

submitted  to  the  stockholders  in  any  other  manner,  the  owner 

of  one  or  more  shares  shall  be  entitled  to  one  vote  for  each 

share  he,  she,  or  they  may  own. 

See  notes  to  sees.  19  and  20  of  charter  of  Nashville  &  Chattanooga 
Railroad  Company,  ch.  1,  herein. 

SEC.  15.  Right  of  way,  condemnation;  Nashville  &  Chat- 
tanooga charter  applies,  when;  storage. — Be  it  further  en- 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.          139 

acted.  That  the  right  of  way  is  hereby  granted  to 

,        Right  of  way. 
said  corporation,  to  have  and  to  hold  in  fee,  or  for 

a  term  of  years,  any  lands,  tenements,  or  hereditaments  which 

IIKIV   l>e    necessary   to   said    road   or  appurtenance 

Real  estate, 
thereof,  or   for  the  erection  of  depot   houses,   or 

storehouse  or  houses,  or  offices  for  the  officers  and  servants  or 
agents  of  the  company,  or  for  workshops  or  foundries  to  he 
used  for  the  said  company,  or  for  procuring  rock,  stone,  tim- 
ber, earth,  and  gravel,  water,  and  all  materials  necessary  for 
the  construction  of  the  road  and  its  appurtenances,  and  for  ef- 
fecting transportation  thereon;  and  where  any  land  or  right  of 
way  may  he  required  by  said  company  for  the  purpose  of  con- 
structing said  road,  and,  for  the  want  of  agreement  or  for  any 
other  cause  the  same  cannot  be  purchased  from  the  owner  or 
owners  thereof,  the  same  may  be  taken  at  a  valua- 
tion to  be  ascertained  in  the  way,  and  with  the  same 
rights,  conditions,  and  liabilities,  as  is  especially  provided  and 
enacted  in  the  act  chartering  and  incorporating  the  Nashville  & 
Chattanooga  Railroad  Company,  and  all  the  rights,  easements, 
and  franchises,  and  all  the  liabilities  to  and  held  by  the  said 
Nashville  &  Chattanooga  Railroad  Company  shall  be  held,  pos- 
sessed, and  exercised,  and  are  hereby  granted,  to  Rlghts  of  N 
the  company  which  it  is  intended  by  this  act  to  in-  C.*st.  L.  Ry. 
corporate,  including  the  right  to  take  and  store  all  goods,  wares, 
merchandise  and  produce  intended  to  be  transported  over  said 
road,  provided  said  company  shall  not  charge  stor-  Stora_e 
age  on  goods,  wares,  merchandise,  and  produce  char*es- 
which  they  receive  in  store  to  be  transjK>rted  over  said  road, 
but  shall  be  allowed  to  charge  the  usual  rates  of  storage  on  all 
freights  received  for  delivery,  after  giving  the  assignee  or  as- 
signees ten  days'  notice  of  the  reception  of  such  freights. 

Status  of  the  right  of  way  on  this  branch  now. — It  will  he  noticed, 
as  one  of  the  peculiarities  of  this  charter,  that  the  right  of  way  was  first 
granted  to  the  company.  It  then  provided,  and  which  is  the  most  val- 
uable part  of  the  charter,  that  "  if,  for  want  of  an  agreement  or  for  any 
other  cause,  the  right  of  way  cannot  be  purchased,  the  same  may  be 
taken  at  a  valuation  to  be  ascertained  in  the  way,  and  with  the  same 
rights,  conditions,  and  liabilities,  as  is  provided  and  enacted  in  the  char- 
ter of  the  Nashville  it  Chattanoog-a  Railroad  Company."  etc.  This  was 
a  very  vahiable  franchise,  and  confers  upon  the  Nashville,  Chattanooga 


140     OKIGINAL  CHARTER  OF  THE  LEBANON  BRANCH 

&  St.  Louis  Railway,  which  company  has  subsequently  purchased  the 
property,  road,  franchises,  etc.,  of  this  railway,  the  right  to  one  hundred 
feet  on  each  side  of  the  center  of  the  road,  when  necessary  for  railway 
purposes,  in  the  absence  of  any  written  agreement  with  the  original 
landowner  to  the  contrary. 

See  full  discussion  of  this  in  notes  to  sees.  24  and  25  of  the  charter  of 
the  Nashville  &  Chattanooga  Railroad  Company,  ch.  1,  herein. 

SEC.  16.  Dividends,  banking,  and  insurance.— Beit  further 

enacted,  That  the  profits  of  said  company,  or  as  much  thereof 
as  the  board  of  directors  may  deem  advisable,  shall,  when  the 
affairs  of  the  company  permit,  be  paid  to  the  stockholders  semi- 
annually,  in  proportion  to  the  amount  of  stock  each  may  hold, 
but  no  dividend  shall  be  paid  to  any  defaulting  stockholder; 
and  said  company  is  hereby  expressly  prohibited  from  carrying 
on  any  banking  operations,  but  may  effect  insurance  on  the 
lives  and  property  transported  over  said  road. 

See  notes  to  sees.  30  and  31  of  charter  of  Nashville  &  Chattanooga 
Railroad  Company,  ch.  1,  herein. 

SEC.  17.  President  and  directors,  powers  of.— Be  it  further 

enacted,   That  the  president  and  board  of  directors  shall  have 

Appoint  offi-  power  to  appoint  all  officers,  agents,  engineers, 
cers,  agents,  .  ,  u 

etc.  servants,   and    employees,    in   whatsoever    number 

may  be  necessary  to  carry  on,  aid,  inaugurate,  and  transact 
the  business  of  the  company,  and  to  remove  them  at  pleasure; 
Salaries  ac-  *ne}7  sna^  have  the  power  to  determine  and  fix  by 
counts,  etc.  contract  the  amount  of  compensation  of  all  officers, 
agents,  servants,  and  employees  of  said  company,  and  to  regu- 
late by  their  by-laws  the  manner  of  selling  and  adjusting  all 
accounts  in  favor  or  against  the  company,  and  the  said  com- 
pany shall  have  and  possess  all  such  additional  powers  as  may 
be  necessary  to  carry  into  effect  and  execution  the  power  granted 
in  this  act  of  incorporation. 

SEC.  18.  State  aid  tO. — Be  it  further  enacted,  That  the  same 
state  aid  to  railroads  provided  for  by  the  act  of  1852,  ch.  151, 
and  subsequent  acts  amendatory  thereof,  commonly  called  the 
"Internal  Improvement  Law,''  is  hereby  granted  to  the  com- 
pany intended  to  be  corporated  by  this  act;  and  whenever  it 
shall  be  satisfactorily  shown  to  the  governor  that  stock  suffi- 
cient in  good  and  bona  fide  subscription  to  grade  and  prepare 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.          141 

for  iron  rails  thirty  miles  of  the  said  road,  then  the  governor 
shall  be  authorized,  and  is  hereby  authorized,  to  issue  and  de- 
liver, upon  the  application  of  the  president  of  the  said  company, 
the  amount  and  kind  of  bonds  provided  for  as  aid  to  said  road  in 
said  general  internal  improvement  law,  which  shall 
not  be  sold  l>elow  the  par  value;  and  as  fast  as  every 
additional  ten  miles  shall  be  prepared,  as  directed  in  said  law, 
then  the  additional  amount  of  the  same  kind  of  bonds  shall,  by 
the  governor,  be  issued  and  delivered  in  like  manner  to  said 
company,  and  in  all  other  respects  all  the  aid  to 
railroads  provided  for  in  the  general  internal  im- 
provement laws  of  this  state  are  hereby  granted  to  the  company 
herein  incorporated,  under  the  restrictions,  liabilities,  and  liens 
therein  prescribed. 

See  next  chapter  for  state  aid. 

SEC,  19.  State  aid,  how  determined.— Be  it  further  enacted, 

That  the  same  amount  of  state  aid  in  coupon  bonds,  payable  in 
the  same  way,  and  having  a  like  time  to  run,  upon  the  same 
conditions,  and  with  the  same  liens,  securities,  and  liabilities 
that  are  granted  to  the  Southwestern  Railroad  Company  to  aid 
said  company  in  building  bridges,  are  hereby  granted  for  the 
same  purpose  to  the  Tennessee  &  Pacific  Railroad  Company,  in- 
corporated by  this  act;  and  the  governor  is  hereby  authorized 
to  issue  to  the  said  company  bonds  of  the  same  amount  and  kind 
aforesaid,  upon  the  same  conditions  as  are  provided  for  in  the 
act  incorporating  the  Southwestern  Railroad  Company,  and  the 
several  amendments  thereto. 

SEC.  20.  State  aid;  lien  On  road  for. —  Beit  further  enacted, 
That  for  the  bonds  received,  as  herein  provided,  the  state  shall 
have  and  hold  a  prior  lien  upon  the  said  railroad,  its  fixtures 
and  equipments,  to  be  built  by  the  company  intended  to  l>e  in- 
corporated by  this  act,  in  the  same  way  and  to  the  same  extent, 
and  with  the  same  remedies,  and  with  as  full  power  to  enforce 
the  same,  as  it  possesses  in  regard  to  the  other  railroads  in  the 
state,  to  which  aid  has  or  shall  be  extended;  and  the  president 
and  directors  of  the  Tennessee  &  Pacific  Railroad 
Company,  by  this  act  incorporated,  shall  provide  for 


142      ORIGINAL  CHARTER  OF  THE  LEBANON  BRANCH 

and  pay  the  interest  upon  the  bonds  by  them  received  from  the 
state,  as  the  same  falls  due,  and  shall  provide  for  and  pay 
the  same  rate  per  cent,  into  the  sinking  fund  as  other  railroads 
in  the  state  are  required  by  law  to  pay,  and,  failing  to  do  so, 
shall  be  subject  to  the  penalties  established  by  law. 

SEC.  21.  Road  tO  be  Completed,  When.— Be  it  further  enacted, 
That  the  railroad  authorized  by  this  act  shall  be  commenced 
within  five  years  after  the  passage  of  the  same,  and  shall  be 
finished  in  fifteen  years  thereafter,  otherwise  the  charter  hereby 
granted  shall  be  void. 

SEC.  22.  Company  subject  to  general  laws;  president— 

Be  it  further  enacted,  That  the  company  chartered  by  this  act 
shall  be  subject  to  all  general  laws  passed  in  this  state  for  the 
government  of  railroad  companies,  and  no  person  shall  be 
elected  thereto,  or  hold  the  office  of  president  of  this  railroad, 
who  is  president  of  any  other  railroad  in  this  state.  (Acts 
1865-6,  ch.  88,  p.  252;  passed  May  24,  1866.) 

It  will  be  noticed  that  the  above  section  does  not  reserve  the  right  to 
modify,  alter,  or  repeal  the  charter.  It  simply  provides  that  the  com- 
pany "shall  be  subject  to  all  general  laws  passed  in  this  state  for  the 
government  of  railroad  companies."  In  other  words,  this  referred  to 
"police"  and  "traffic"  regulations,  and  in  no  manner  can  be  construed 
into  a  reservation  on  the  part  of  the  state  to  modify,  alter,  or  repeal  the 
charter,  or  to  divest  the  company  of  any  vested  rights  under  the  same. 
Section  15  of  this  charter,  therefore,  providing  for  a  one  hundred  foot 
right  of  way  on  either  side  of  the  center  of  the  road,  in  absence  of  con- 
tract to  the  contrary,  is  binding.  See  9  Bax.,  442;  2  Pick.,  614;  3  Pick., 
155;  13!)  U.  S.,  833;  29  U.  S.,  938;  117  IT.  S.,  129. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.          143 


CHAFFER  VI. 

DEED  OF  AND  ACTS  RELATING  TO  THE  TENNESSEE  &  PACIFIC 
RAILROAD  COMPANY. 

Deed  to  Nashville,  Chattanooga  &  St.  Louis  Railway  of  road, 
franchises,  etc.,  of  Tennessee  &  Pacific  Railroad. 

TENNESSEE  &  PACIFIC  R.  R.  Co., 

TO — Deed. 
N.,  C.  &ST.  L.  RY. 
In  pursuance  of  the  resolutions  of  the  stockholders  of  the 
Tennessee  &  Pacific  Railroad  Company,  adopted  at  their  con- 
vention at  Nashville,  on  September  12,  1877,  and  that  of  the 
directory  of  said  company,  passed  on  the  first  day  of  October, 
1877,  as  will  appear  from  the  minutes  of  said  board,  and  for 
and  in  consideration  of  the  payment  to  the  said  Tennessee  & 
Pacific  Railroad  Company  of  the  sum  of  one  hundred  and  forty 
thousand  six  hundred  dollars  in  State  of  Tennessee  bonds,  forty 
thousand  dollars  in  Tennessee  &  Pacific  Railroad  Company 
mortgage  ten  per  cent,  bonds,  and  ten  thousand  dollars  in 
cash,  by  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  the 
receipt  whereof  is  hereby  acknowledged,  the  said  Tennessee  & 
Pacific  Railroad  Company  does  hereby  bargain,  sell,  alien,  and 
convey  to  the  said  Nashville,  Chattanooga  <fe  St.  Louis  Railway 
and  its  assigns,  forever,  all  and  singular  the  estate  and  prop- 
erty, real,  personal,  and  mixed,  and  all  fixtures,  rights,  privi- 
leges, immunities,  franchises,  and  easements  of  all  and  every 
kind  held  and  owned  or  occupied  by  the  said  Tennessee  <fc  Pa- 
cific Railroad  Company  or  thereto  belonging,  including,  espe- 
cially, all  and  singular  the  railroad  of  said  company,  with  the 
appurtenances  thereof,  from  and  including  its  terminus  at  Nash- 
ville, in  the  county  of  Davidson,  State  of  Tennessee,  to  and  in- 
cluding its  terminus  in  the  town  of  Lebanon,  in  the  county  of 
Wilson,  in  said  state,  l>eing  a  distance  of  about  thirty  miles; 
together  with  all  and  singular  the  lands,  tracks,  lines,  rails, 


144   DEED  OF  AND  ACTS  RELATING  TO  LEBANON  BRANCH 

bridges,  ways,  rights  of  way,  materials,  privileges,  interests, 
real  estate,  and  personal  property,  situated  in  the  State  of  Ten- 
nessee, of  every  kind  and  character,  including  the  depots  and 
stations  and  grounds  attached  thereto,  on  said  line  of  railroad; 
and  also  all  the  rolling  stock,  locomotives,  engines,  tenders, 
cars,  tools,  and  machinery  belonging  or  appertaining  to  the 
said  railroad  of  the  Tennessee  &  Pacific  Railroad  Company,  as 
aforesaid,  including  all  of  the  choses  in  action  of  said  com- 
pany, of  every  kind  and  nature — but  this  is  not  to  include  the 
claim  known  as  the  Mabry  claim,  being  a  debt  due  by  one  Jas. 
A.  Mabry  and  secured,  in  part,  by  real  estate  in  or  near  Knox- 
ville,  Knox  county,  Tennessee,  the  said  Mabry  claim  being 
excluded  from  the  conveyance  herein,  and  to  be  and  remain  the 
property  of  the  said  Tennessee  &  Pacific  Railroad  Company. 
To  have  and  to  hold  the  same  to  the  said  Nashville,  Chattanooga 
&  St.  Louis  Railway  and  its  successors  and  assigns,  forever. 
And  the  said  Tennessee  &  Pacific  Railroad  Company  does  hereby 
covenant  to  and  with  the  said  Nashville,  Chattanooga  &  St.  Louis 
Railway  that  it  is  lawfully  seized  and  possessed  of  said  above 
described  property,  and  has  full  right  and  power  to  convey  the 
same,  and  that  the  same  is  wholly  unincumbered,  and  that  it 
will  forever  warrant  and  defend  the  title  to  the  same  against 
the  claim  or  claims  of  any  and  all  persons  whatsoever  to  the 
said  property  herein  conveyed  and  any  part  thereof. 

In  witness  whereof,  the  said  Tennessee  &  Pacific  Railroad 
Company  has  caused  its  president  to  affix  its  corporate  name 
and  seal  hereto,  this  first  day  of  October,  1877. 

[SEAL.]  TENNESSEE  &  PACIFIC  RAILROAD, 

By  JOHN  W.  CHILDRESS,  Pr. 

R.  C.  BRANSFORD,  Sec'y. 

Registered  December  7,  1877,  in  Register's  office,  Davidson 
county,  Tennessee,  book  58,  p.  537. 

Counties  of  Wilson  and  Davidson  given  privilege  of  voting  for 
stock  in  Tennessee  &  Pacific  Railroad  Company. 

Be  it  further  enacted,  That  the  general  provisions  of  sees.  5, 
6,  9,  and  12  of  this  act  be,  and  the  same  are  hereby,  extended  to 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         145 

the  .  .  .  and  the  Tennessee  &  Pacific  Railroad  Company, 
and  that  the  counties  of  Wilson  and  Davidson  shall  have  privi- 
lege of  again  voting  for  or  against  subscriptions  to  the  stock  of 
said  Gallatin  &  Lebanon  and  Tennessee  &  Pacific  Railroad 
Companies,  at  the  request  of  said  companies,  and  all  laws  or 
parts  of  laws  conflicting  herewith  are  hereby  repealed.  (Acts 
Tenn.,  1868-9,  ch.  11,  p.  93,  sec.  29.) 

1.  The  counties  of  Wilson  and  Davidson,  under  this  authority,  voted 
a  large  subscription.     Their  stock  was  subseqxiently  sold  to  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway.    See  minute  book  "  E,"  pp.  302- 
305  and  348-351  of  the  county  court  of  Wilson  county. 

2.  Sees.  5,  6,  and  9,  above  referred  to,  authorized  the  counties  to  in- 
dorse the  bonds  of  the  company,  and  prescribed  rules  and  regulations 
in  regard  thereto. 

3.  Sec.  12,  above  referred  to,  authorized  the  company  to  issue  bonds 
to  an  amount  not  exceeding  two  hundred  thousand  dollars,  on  such 
terms  and  in  such  denominations  as  to  it  might  seem  advisable. 

Tennessee  &  Pacific  Railroad  Company  and  Nashville  &  Cin- 
cinnati Railroad  Company  authorized  to  unite  upon  a 
common  track,  how  and  when. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the 
State  of  Tennezxee,  That  the  charter  of  the  Nashville  &  Cincin- 
nati Railroad  Company,  enacted  by  the  general  assembly  at  its 
session  of  1851-2,  as  recorded  in  ch.  303,  is  hereby  revived, 
with  the  privilege  of  building  said  road  to  such  distance  as  may 
be  deemed  expedient  by  said  company,  on  the  south  side  of  the 
Cumberland  river,  and  the  said  Nashville  &  Cincinnati  Railroad 
Company  and  the  Tennessee  &  Pacific  Railroad  Company  are 
hereby  authorized  and  empowered  to  unite  upon  a  common 
track,  either  single  or  double,  as  may  be  deemed  expedient  by 
said  companies,  and  to  such  distance  to  the  eastward  or  north- 
eastward of  Nashville  as  the  said  companies,  in  their  discretion, 
may  agree  upon.  But  in  the  case  of  any  such  union  of  the  said 
roads  upon  a  common  track,  as  herein  provided,  the  state  aid 
provided  for  by  law  shall  not  l>e  extended  in  full  to  each  of  the 
roads  for  the  distance  they  may  run  upon  a  common  track,  but 
only  to  the  amount  of  three-fourths  thereof  to  each  road;  and 
for  such  distance  as  the  said  roads  may  run  upon  separate  and 
distinct  tracks  the  said  state  aid  shall  he  extended  in  full,  as 
10 


146   DEED  OF  AND  ACTS  RELATING  TO  LEBANON  BRANCH 

provided  for  by  law.      (Acts  Term.,   1865-6,  p.   388;  passed 
May  26,  1866.) 

Attorney-  general  directed  to  institute  suit  against  Tennessee 
&  Pacific  Railroad  Company  for  bonds  fraudulently  ob- 
tained. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the  State 
of  Tennessee,  That  the  attorney  -general  of  this  state  shall  forth- 
with institute,  in  the  name  of  the  state,  a  suit  in  the  chancery 
court  of  Davidson  county,  against  the  Tennessee  &  Pacific  Rail- 
road Company,  setting  forth  particularly  that  the  said  company 
has  fraudulently  obtained  the  issuance  of  the  bonds  of  the  state, 
to  the  amount  of  eight  hundred  and  eighty-five  thousand  dol- 
lars, and  has  obtained  the  issuance  of  the  said  bonds  contrary 
to  the  provisions  of  the  act  to  establish  a  system  of  internal  im- 
provements in  this  state,  passed  February  11,  1852,  and  con- 
trary to  the  provisions  of  an  act  passed  December  7,  1867,  en- 
titled "An  act  to  amend  the  internal  improvement  laws  of  the 
state,"  passed  February  11,  1852,  and  enjoining  said  Tennessee 
&  Pacific  Railroad  Company,  its  officers,  agents,  directors,  and 
stockholders,  from  in  any  way  disposing  of  said  bonds  until  the 
further  order  of  the  court,  and  asking  that  the  board  of  direct- 
Officers  and  ors'  President,  officers,  and  stockholders  of  the  Ten- 
nessee  &  Pacific  Railroad  Company  be  held  in- 


dividually liable  for  the  payment  of  the  bonds  so 
fraudulently  and  illegally  obtained  by  such  company,  and  for 
all  other  losses  that  may  fall  upon  the  state  in  the  consequence 
of  the  commission  of  any  fraud  by  such  company,  or  by  the 
illegal  act  of  said  company  in  the  receipt  or  disposal  of  said 
bonds  by  said  company,  its  agents,  or  officers  or  attorneys;  Pro- 

vided, That  nothing  in  this  act  shall  be  so  construed 
Proviso.  . 

as  to  require  suit  to  be  brought  against  John  Kirk- 

man,  W.    K.   Elliston,  Thomas  Chad  well,  E.  J.  Williams,  D. 

Cooke,   Jr.,  E.   H.   East,  and  Abram  L.   Demoss,   or  any  di- 

rectors or  stockholders  of  said  company  who  may  show  that 

they  were  ignorant  of  or  opposed  to  the  procurement  of  said 

bonds    by  the    company;    Provided  further,   That 

said  stockholders  did  not  approve  of  the  use  of  said 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS   RAILWAY.         147 

bonds,  or  the  proceeds  thereof  after  they  were  obtained,  in  the 
building  of  the  roadbed,  bridges,  or  in  the  buying  of  iron  for 
the  purpose  of  ironing  said  road,  or  the  furnishing  of  cross- 
ties,  or  other  material  of  said  road.  And  said  attorney -general 

shall  also  pray  the  court  for  such  other  relief  in 

.„_     Other  relief, 
behalf  of  the  state,  as  against  the  said  company,  its 

directors  and  stockholders,  as  under  existing  laws  may  be  law- 
fully granted;  Provided,  That  the  attorney-general  shall  not 

bring  suit  against  said  company,  its  directors  and 

Proviso. 

stockholders,  as  herein  provided,  without  the  con- 
currence or  assent  of  Robert  J.  McKinney,  Archibald  Wright, 
Francis  B.   Fogg,  and  the  governor,   secretary  of  state,  and 
comptroller,  or  a  majority  of  them. 

SEC.  2.  Be  it  further  enacted,  That  the  public  welfare  re- 
quires that  this  act  shall  take  effect  from  and  after  its  passage. 
(ActsTenn.,  1870,  ch.  116,  p.  179;  passed  July  7,  1870.) 

A  bill  was  filed  under  this  act,  but  dismissed,  as  the  company  settled 
under  the  Acts  of  1872,  ch.  6.  See  act  further  on. 

Resolution  directing  directors  of  Tennessee  &  Pacific  Railroad 
Company  to  account  for  funds  received  by  road ;  to  dis- 
close list  of  stockholders  and  distance  road  had  been 
built,  and  cost. 

Resolved  by  tltc  General  Assembly  of  tlie  State  of  Tennessee, 
That  the  president  and  directors  of  the  Tennessee  &  Pacific 
Railroad  Company  be,  and  they  are  hereby,  requested  to  ren- 
der this  general  assembly,  on  or  before  the  first  day  of  Feb- 
ruary, 1871,  a  full  and  detailed  account  of  all  funds  of  every 
kind  and  description  which  have  been  received  by  them  from 
all  sources,  and  how  the  same  has  been  disbursed,  to  whom 
paid  and  for  what  purpose  paid,  and  what  amount  of  said  funds 
and  of  what  kind,  are  now  in  their  possession. 

Resolved  furttter,  That  the  said  president  and  directors  fur- 
nish also  to  this  general  assembly  a  full  and  complete  list  of 
stockholders  in  said  railroad  company,  showing  the  amount  of 
stock  subscribed  by  each  stockholder,  the  date  of  each  subscrip- 
tion, the  amount  paid  by  each  at  the  time  of  subscribing,  how 
much  has  been  paid  since,  and  the  amount  and  date  of  any  such 


148   DEED  OF  AND  ACTS  RELATING  TO  LEBANON  BRANCH 

subsequent  payment,  and  how  much,  if  any,  remains  unpaid 
upon  such  subscription  of  stock. 

Resolved  further,  That  the  said  president  and  directors  be 
required  to  furnish  this  general  assembly  with  a  statement  show- 
ing how  far  said  road  is  completed  and  in  operation,  and  cost 
of  constructing  and  equipping  the  same,  the  cost  of  running  it, 
and  receipts  or  earnings  of  said  Tennessee  &  Pacific  Railroad. 
(Acts  Tenn.,  1870-1,  p.  169,  No.  29;  approved  January  24, 
1871.) 

Commissioners  directed  to  sell  Tennessee  &  Pacific  Railroad 
and  bonds  hypothecated  by  it  condition. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the 
State  of  Tennessee,  That  the  commissioners  for  the  state  for  the 
sale  of  delinquent  railroads  be,  and  they  are  hereby,  instructed 
to  file  a  bill  in  the  name  of  the  state,  or  take  any  other  neces- 
sary steps  for  the  sale  of  the  Tennessee  &  Pacific  Railroad,  or 
of  the  interest  of  the  state  therein,  as  provided  by  the  act 
which  this  is  intended  to  amend. 

The  act  referred  to  above  as  being  amended  by  this  act.  authorized 
the  sale  of  all  delinquent  railroads,  and  may  be  found  in  Acts  Tenn., 
1870-71,  ch.  23,  p.  25,  which,  in  turn,  amended  the  Acts  of  1870,  ch.  79. 

SEC.  2.  Be  it  farther  enacted,  That  the  bonds  hypothecated 
Bonds  hypoth-  by  the  Tennessee  &  Pacific  Railroad  Company  shall 
sold.  be  sold  and  the  proceeds  of  sale  shall  first  be  applied 

to  the  discharge  of  the  sum  for  which  said  bonds  were  hypoth- 
ecated, and  the  residue  paid  into  the  state  treasury.  But  should 
it  not  be  necessary  to  sell  all  of  said  bonds,  then  only  so  many 
of  said  bonds  shall  be  sold  as  will  realize  a  sum  necessary  for 
that  purpose,  and  the  others  shall  be  deposited  with 
the  comptroller  of  the  treasury;  Provided,  Said 
railroad  company,  or  its  stockholders,  electing  so  to  do,  may 
„  .  settle  for  the  state's  interest  therein  without  the 
without  suit.  gujt  herein  provided  for,  upon  the  same  basis  of 
proportional  payment  with  the  purchasers  of  the  Winchester  & 
Alabama,  McMinnville  &  Manchester,  Knoxville  &  Kentucky, 
and  the  Cincinnati,  Cumberland  Gap  &  Charleston  railroads; 
that  is  to  say,  said  Tennessee  &  Pacific  Railroad  Company,  or 
its  stockholders,  may  purchase  the  entire  interest  of  the  state 


NASHVILLE,    CHATTANOOGA    <fe   ST.    LOUIS    RAILWAY.         149 

therein  by  paying  to  the  governor,  in  lawfully  issued  bonds  and 
coupons  of  the  state,  such  proportion  of  its  state  debt  as  will 
equal  the  average  projxjrtion  of  the  aggregate  like  debts  of 
the  other  named  railroads,  which  has  l>een  realized  and  secured 
to  the  state  by  sales  of  the  same;  the  amount  so  to  be  paid  to 
be  ascertained  by  said  commissioners,  and  payment  Paynieilt 
thereof  to  be  made  and  secured  upon  exactly  the  how  m*de< 
same  terms  and  conditions  as  those  for  the  other  railroads  spec- 
ified; the  company  to  have  preference  of  purchase,  company  to 
and  until  the  second  Tuesday  of  April,  1872,  in  erence. 
which  to  make  the  first  payment,  and  upon  the  company's 
failure  to  purchase,  then  the  stockholders  thereof  to  have  twenty 
days  from  the  said  second  Tuesday  of  April,  1872,  in  which  to 
purchase  and  make  the  first  payment,  but  a  purchase  by  any 
part  of  the  stockholders  to  be  for  the  benefit  of  all  stockholders 
in  proportion  to  their  respective  amounts  of  stock,  including 
the  counties  of  Wilson  and  Davidson,  who  may  elect  to  par- 
ticipate in  such  purchase  under  its  terms,  and  it  being  further 
expressly  provided  that  a  sale  under  provisions  of 
this  act  shall  forever  prevent  said  Tennessee  & 
Pacific  Railroad  Company  from  demanding  or  receiving  any 
further  issue  of  bonds  of  the  state,  under  any  act  of  the  legis- 
lature heretofore  passed;  Provided  further,  That  nothing  in 
this  act  shall  relieve  said  Tennessee  &  Pacific  Railroad  Com- 
pany from  liability  to  the  state  in  full  for  all  such  bonds  re- 
ceived from  the  st-ite,  as  may  be  judicially  determined  under 
suit  in  the  chancery  court  at  Nashville,  to  be  illegally  held  by 
said  company;  the  institution  of  such  suit  to  be  at  the  sound 
discretion  of  said  commissioners,  under  advice  of  the  attorney- 
general  of  the  state,  or  such  other  legal  counsel  as  may  be 
selected,  and  to  be  only  instituted  within  ninety  days  after  the 
passage  of  this  act,  and  in  default  of  such  suit  settlement 
under  the  provisions  of  this  act  to  be  final;  but  if  the  suit  pro- 
vided by  this  section  be  instituted,  said  company,  or  its  stock- 
holders, to  have  sixty  days  from  final  decree  under  the  same  in 
which  to  purchase  said  Tennessee  &  Pacific  Railroad  on  the 
terms  herein  provided. 


150   DEED  OF  AND  ACTS  RELATING  TO  LEBANON  BRANCH 

SEC.  3.  Be  it  further  enacted,  That  this  act  take  effect  from 
and  after  its  passage,  the  public  welfare  requiring  it.  (Acts 
Tenn.,  1871,  ch.  127,  p.  138;  passed  December  13,  1871.) 

This  act  was  amended  by  Acts  1872.  ch.  6,  p.  27  (ex.  ses.).  See  act 
immediately  following. 

Commissioners  authorized  to  compromise  state's  claim  against 
Tennessee  &  Pacific  Railroad  Company  for  $300,000, 
how. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the  State 
of  Tennessee,  That  the  said  act,  passed  on  the  13th  December, 
1871,  which  provides  for  a  sale  of  the  state's  interest  in  the 
Tennessee  &  Pacific  Railroad,  be  amended  so  that  the  directors 
of  said  road,  representing  the  stockholders  in  said  Tennessee 
&  Pacific  Railroad  Company,  shall  be  permitted  to 

fiernent  be*       settle  the  debt  of  the  state  against  said  railroad  on 
tween  state  „  ,     .  ,         .     .        »j    •  •  «4 

and  T.&  p.  R.    account  of  state  bonds  issued  to  it  in  aid  of  its  con- 

R  Co 

struction,  by  the  payment  to  said  commissioners  of 
the  sum  of  three  hundred  thousand  dollars  ($300,000),  in  the 
bonds  of  the  State  of  Tennessee,  with  coupons  since  January, 
1871,  attached,  under  the  provisions  of  existing  laws  upon  the 
subject  of  the  sale  of  delinquent  railroads,  one-fourth  of  which 
shall  be  paid  on  the  day  of  sale  or  twenty  days  thereafter,  and 
the  balance  in  one,  two,  and  three  years  thereafter. 

SEC.  2.  Be  it  further  enacted,  That  a  compliance  with  the 
provisions  of  this  act  shall  be  deemed  a  full  satisfaction  and 
discharge  of  the  state's  claim  against  said  railroad. 

SEC.  3.  lie  it  further  enacted,  That  the  second  section  of  the 
act  of  December  13,  1871,  with  the  provisos  thereto  attached, 
is  hereby  repealed,  upon  the  Tennessee  &  Pacific  Railroad  Com- 
pany accepting  the  terms  of  this  act,  and  upon  said  company 
making  the  payment  and  complying  with  the  terms  as  required 
by  this  act,  and  upon  the  company  paying  the  costs  that  have  or 
may  accrue  upon  any  suit  brought  by  the  state  to  recover  any 
portion  of  the  state's  bonds  heretofore  issued  to  said  company; 
and  section  first  of  said  act  of  December  13,  1871,  is  suspended 
until  said  Tennessee  &  Pacific  Railroad  Company  shall  notify 
the  commissioners  of  their  refusal  to  accept  the  terms  of  the 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         151 

first  section  of  this  act,  provided  said  notice  shall  be  given  the 
commissioners  within  twenty  days  after  the  passage  of  this  act. 
SEC.  4.  Be  it  further  enacted,  That  this  act  shall  take  effect 
from  and  .after  its  passage,  the  public  welfare  requiring  it. 
(Acts  Tenn.,  1872  (ex.  ses.),  ch.  6,  p.  27;  passed  March  28, 
1872.) 

The  state  was  settled  with  under  this  act. 

State  aid  to  the  Tennessee  &  Pacific  Railroad.— Below  is 

given  the  act  of  the  legislature  of  Tennessee  authorizing  state 
aid  to  be  granted  to  the  Tennessee  &  Pacific  Railroad,  for  the 
purpose  of  building  and  equipping  its  road.  This  aid  was 
given  by  having  the  governor  to  indorse  the  bonds  of  the  road 
on  behaff  of  the  state.  The  act  is  quite  lengthy,  and  is  so  sel- 
dom required,  being  long  since  repealed,  that,  for  the  purpose 
of  space  and  economy,  it  is  not  deemed  advisable  to  insert  it  in 
full  in  this  compilation,  but  simply  refer  to  the  act  and  page 
where  it  can  be  found. 

Acts  of  1867-8,  ch.  17,  p.  14,  sec.  9.  An  additional  sum 
of  $10,000  per  mile  appropriated  to  the  Tennessee  &  Pacific 
Railroad  Company  under  the  internal  improvement  act.  The 
charter  of  the  road  itself  provided  for  state  aid.  See  charter 
in  preceding  chapter. 


152  ABSTRACT    OF    TITLE    TO    FAYETTEVILLE    BRANCH 


CHAPTER  VII. 

WINCHESTER  &  ALABAMA  RAILROAD  COMPANY. 
(Now  FORMING  PART  OF  FAYETTEVILLE  BRANCH.) 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— Under  the  general  improvement  laws  of  1851-52,  and 
amendments  thereto,  the  State  of  Tennessee,  through  its  gov- 
ernor, indorsed  the  bonds  of  the  various  railroads  in  the  state, 
to  aid  in  their  construction,  retaining  a  lien  on  the  respective 
roads  so  assisted,  as  security  therefor.  Among  the  number 
was  the  Winchester  &  Alabama  Railroad  Company. 

Default  having  been  made  in  the  payment  of  interest  on  the 
bonds  issued  for  its  benefit,  a  bill  was  filed  in  the  chancery 
court  at  Nashville  in  the  name  of  the  state,  against  the  Edge- 
field  &  Kentucky  Railroad  Company  et  als.,  to  which  the  Win- 
chester &  Alabama  Railroad  Company  was  also  made  a  defend- 
ant, seeking  to  enforce  the  state's  lien  or  statutory  mortgage. 

This  bill  was  filed  in  pursuance  of  an  act  of  the  legislature 
of  1870-71,  ch.  23,  p.  25,  authorizing  the  sale  of  all  delin- 
quent roads,  the  tenth  section  of  which  provided,  ' '  that  upon 
the  sale  of  any  of  the  franchises  of  either  of  the  railroad  com- 
panies, by  the  commissioners,  under  the  provisions  of  this  act, 
all  the  rig/its,  privileges,  and  immunities  appertaining  to  the 
franchise  so  sold,  under  its  act  of  incorporation,  and  the  amend- 
ments thereto,  and  the  general  improvement  law  of  the  state, 
and  acts  amendatory  thereof,  shall  be  transferred  to  and  vest  in 
such  purchaser,  and  the  purchaser  shall  hold  said  franchise, 
subject  to  all  liens  and  liabilities  in  favor  of  the  state,  as  now 
provided  by  law  against  the  railroad  companies. ' ' 

A  decree  of  sale  was  entered,  and  the  commissioners  reported 
that  propositions  were  made  by  John  Frizzell  and  others,  and 
Wright  &  Co.,  to  buy  the  road  at  the  minimum  price  fixed  by 
the  decree,  which  was  $300,000.  Preference  was  given  to 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         153 

Wright  &  Co.,  but  after  considerable  litigation  they  withdrew 
their  offer,  and  M.  J.  Wicks  and  J.  J.  Donegan  purchased  the 
road  at  the  figure  mentioned.  Their  bids  were  subsequently 
transferred  to  the  Memphis  &  Charleston  Railroad  Company, 
and  on  June  28,  1875,  a  final  decree  was  entered  in  said  case, 
confirming  the  sale  of  the  road,  franchises,  privileges,  right  of 
way,  etc.,  to  said  Memphis  &  Charleston  Railroad  Company. 
See  decree  itself  in  minute  hook  2,  p.  438,  in  chancery  court 
at  Nashville,  Tenn.,  which  decree  is  also  set  out  herein,  in  next 
chapter.  The  decree,  with  proper  acknowledgments,  is  regis- 
tered in  the  register's  office  of  Warren  county,  in  book  7,  No. 
7,  pp.  72,  73;  in  Coffee  county,  in  book  vol.  No.  2,  trust  deeds, 
etc.,  pp.  4  and  5  [book  E,  p.  109];  in  Franklin  county,  in 
book  6,  p.  40,  and  in  trust  book  No.  1,  pp.  354-5-6.  On 
July  28,  1877,  the  Memphis  &  Charleston  Railroad  Company 
sold  this  railway,  together  with  the  McMinnville  &  Manchester 
Railroad,  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway, 
for  the  sum  of  $320,000,  in  bonds  and  other  considerations 
mentioned  in  the  deed.  This  conveyance  was  registered  in  the 
register's  office  of  Franklin  county,  book  1,  pp.  553-555;  in 
Lincoln  county  in  book  Z,  pp.  216-221;  in  Coffee  county  in 
book  P,  pp.  453,  454;  in  Warren  county  in  book  8,  pp.  296-299. 
The  deed  is  also  inserted  herein  among  the  acts,  deeds,  etc.,  re- 
lating to  the  Winchester  &  Alabama  Railroad.  See  next  chapter. 

This  was  a  legal  purchase.  Under  the  Acts  of  Tenn.,  1871,  eh.  69, 
which  superseded  the  Acts  of  1871,  ch.  22,  it  was  provided  that,  ''every 
railroad  corporation  in  this  state,  whether  created  under  a  general  or 
special  law,  shall  have  the  power  to  acquire,  by  purchase  or  other  law- 
ful contract,  and  have,  hold,  use,  and  operate,  any  railroad,  with  its 
franchise*,  belonging  to  any  other  railroad  corporation." 

What  franchises,  etc.,  passed  to  the  Nashville,  Chattanooga 

&  St.  Louis  Railway  under  this  Sale.— In  addition  to  the  prop- 
erty, right  of  way,  lands,  tracks,  etc.,  therein  conveyed,  the 
deed  specifically  provided  for  the  transfer  of  all  the  right*, 
privileges,  iminnnUiex,  and  f ranch i#t>x  of  the  company.  Sec- 
tion 1  of  the  charter  of  the  railway  provided  that  the  said  com- 
pany should  "have  and  enjoy  all  the  right*  and  privileges 
secured  to  the  Nashville  &  Chattanooga  Railroad  Company  by 
an  act  of  the  general  assembly  passed  December  11,  1845,  and 


154:  ABSTRACT    OF   TITLE    TO    FAYETTEVILLE    BRANCH 

subject  to  all  the  restrictions  contained  in  said  charter,  which 
said  road  shall  be  built  and  constructed  agreeable  to  the  require- 
ments of  the  aforesaid  charter."  This  being  so,  the  original 
Winchester  &  Alabama  Railroad  Company  possessed  all  the 
rights  and  privileges  of  the  Nashville  &  Chattanooga  Railroad 
Company,  and  the  latter  company,  as  the  lawful  purchaser 
thereof,  under  the  Acts  of  1871,  ch.  69,  is  now  entitled  to  hold 
and  operate  the  same,  with  all  such  rights  and  privileges. 

1.  For  rights  and  privileges  of  the  Nashville  &  Chattanooga  Railroad 
charter,  see  ch.  1.     See,  also,  general  discussion  herein  under  Eminent 
Domain,  Right  of  Way,  etc.     Refer  to  index. 

2.  The  legislature,  in  granting  a  charter  to  one  railroad  company, 
may  lawfully  confer  upon  it  all  the  rights,  easements,  and  franchises  of 
another,  by  simply  referring  to  it  in  the  manner  that  this  was  done.     See 
8  Lea  (Tenn.),  427'. 

Width  Of  right  Of  way. — As  the  charter  of  the  Winchester 
&  Alabama  Railroad  Company  conferred  upon  it  all  the  rights 
and  privileges  of  the  Nashville  &  Chattanooga  Railroad  Com- 
pany, the  latter  company,  as  the  lawful  purchaser  thereof,  is  now 
entitled  over  the  line  of  this  road  from  Decherd  to  Fayetteville 
and  from  Elora  to  the  state  line,  to  all  the  rights  and  privileges 
conveyed  in  sections  23  and  24  of  its  own  charter,  which  gives 
a  hundred  feet  on  each  side  of  the  center  of  said  road,  when 
necessary  for  railway  purposes,  in  the  absence  of  any  contract 
with  the  original  landowner  to  the  contrary.  (5  Pick.,  293.) 

For  a  general  discussion  of  this  and  kindred  subjects,  together  with 
the  right  and  method  of  taking  more  than  one  hundred  feet  on  each  side 
of  the  center  of  the  road,  when  necessary  for  railroad  purposes,  see 
Eminent  Domain,  Right  of  Way,  herein.  Refer  to  index. 

Where  Winchester  &  Alabama  Railroad  Company  incorpo- 
rated, termini. — The  Winchester  &  Alabama  Railroad  Com- 
pany was  chartered  by  Acts  Tenn.,  1849-50,  ch.  56,  sec.  6,  to 
construct  a  road  from  Winchester,  Tenn.,  to  the  Alabama  state 
line,  in  the  direction  of  Huntsville.  Subsequently,  by  Acts 
Tenn.,  1851-52,  ch.  43,  the  charter  was  amended  so  as  to 
allow  the  company  to  extend  the  road  from  the  town  of  Win- 
chester to  the  Nashville  &  Chattanooga  Railroad.  Under  this 
authority  the  road  was  built  to  Decherd.  Again,  by  Acts 
Tenn.,  1851-52,  ch.  206,  p.  310,  sec.  7,  the  company  was  au- 
thorized to  construct  its  road  to  Fayetteville,  with  all  the  rights, 


NASHVILLE,    CHATTANOOGA    &    ST.     LOUIS    RAILWAY.          155 

powers,  and  privileges  given  to  said  company  by  their  original 
charter  and  acts  amendatory  thereof.  Under  this  authority  the 
road,  from  a  point  at  or  near  Elora,  was  built  to  Fayetteville. 
The  road  from  Elora  to  the  state  line  in  the  direction  of  Hunts- 
ville  was  built  under  the  original  charter.  See  al>ove  Acts  of 
1851-52  in  next  chapter.  The  road  was  also  chartered  by  the 
State  of  Alabama  (Acts  1855-56,  No.  312,  p.  314)  so  as  to 
u  begin  at  a  point  on  the  state  lino  between  Alabama  and  Ten- 
nessee, where  the  Tennessee  part  of  the  road  strikes  the  said 
line,  so  as  to  connect,  and  to  extend  from  there  through  Madison 
county  in  the  direction  of  the  Tennessee  river,  within  three- 
quarters  of  a  mile  of  the  village  of  New  Market,  continuing  by 
or  near  Brownsborough  through  the  valley  of  Flint  river,  pass- 
ing close  by  the  village  of  Vienna,  on  the  Tennessee  river,  at 
the  nearest  and  most  practicable  point  for  connecting  with  the 
Alabama  &  Tennessee  River  Railroad,  pursuing  as  nearly  as 
possible  the  route  heretofore  surveyed  for  said  road."  This 
charter  was  subsequently  amended  by  Acts  Ala.,  1857-58,  No. 
152,  p.  162,  so  as  to  authorize  and  empower  the  company  to 
extend  the  railroad  across  the  Tennessee  river  at  the  most 
practicable  point,  and  from  thence  through  Marshall  county  to 
the  gap  of  Sand  Mountain  called  Davidson's  Hollow,  and  also 
to  connect  with  the  Tennessee  &  Coosa  Railroad. 

That  part  of  the  road,  however,  covered  by  the  Alabama 
charter  was  never  built,  and  hence  the  charter  and  amendment 
granted  by  that  state,  as  referred  to  above,  will  not  be  inserted 
herein.  The  road  from  the  Tennessee  state  line  to  Huntsville, 
Ala.,  was  subsequently  built  under  the  charter  of  the  Hunts- 
ville &  Elora  Railroad  Company. 

Distance  built  wben  purchased  by  Nashville.  Chattanooga 

&  St.  Louis  Railway.— Only  the  line  from  Dec-herd  to  Fayette- 
ville had  been  constructed  when  purchased  by  this  company. 
The  road  from  Elora  to  the  state  line  has  subsequently  teen 
built  under  the  original  charter  by  this  company,  as  therein 
provided  for.  The  road  from  the  state  line  to  Huntsville, 
Ala.,  was  built  by  this  company  under  the  charter  of  the 
Huntsville  &  Elora  Railroad  Company,  after  it  had  purchased 


156       ORIGINAL    CHARTER    OF    THE    FAYETTEVILLE    BRANCH 

said  road,  which  charter  was  granted  by  the  State  of  Alabama; 
the  line  from  Fayetteville  to  Petersburg  was  built  by  this  com- 
pany under  the  charter  of  the  Duck  River  Valley  Narrow 
Gauge  Railroad  Company,  while  lessee  of  said  road;  the  road 
from  Petersburg  to  Columbia  had  previously  been  constructed 
by  the  Duck  River  Valley  Narrow  Gauge  Railroad  Company. 
The  entire  line  from  Fayetteville  to  Columbia  was  subsequently 
purchased  by  the  Nashville,  Chattanooga  &  St.  Louis  Railway. 

For  charters  of  Duck  River  Valley  Narrow  Gauge  Railroad  Company, 
and  Huntsville  &  Elora  Railroad  Company,  together  with  terms  and 
conditions  of  purchase,  see  index. 

ORIGINAL,   CHARTER   OF  THE  WINCHESTER  & 
ALABAMA  RAILROAD   COMPANY. 

[!N  TENNESSEE.] 
Acts  Tenn.,  1849-50,  ch.  56,  sec.  6. 

SEC.  6.  Incorporation,  name,  general  powers. —Be  it  en- 
acted, That  the  formation  of  a  company  is  hereby  authorized 
for  the  purpose  of  constructing  a  railroad  from  Winchester  to 
the  Alabama  line,  in  the  direction  of  Huntsville,  Alabama, 
which  company  shall  consist  of  the  stockholders;  and,  when 
formed,  shall,  and  they  are  hereby,  constituted  a  body  cor- 
porate, by  the  name  and  style  of  the  Winchester  &  Alabama 
Railroad  Company,  and  said  company,  by  their  corporate  name, 
shall  have  power  to  sue  and  be  sued,  plead  and  be  impleaded, 
in  all  the  courts  of  this  state,  or  the  United  States,  and  shall 
have  and  enjoy  all  the  rights  and  privileges  secured  to  the 
Nashville  &  Chattanooga  Railroad  Company,  by  an  act  of  the 
general  assembly  passed  December  11,  1845,  and  subject  to  all 
the  restrictions  contained  in  said  charter,  which  road  shall  be 
built  and  constructed  agreeable  to  the  requirements  of  the 
aforesaid  charter. 

1.  Sections  1-5,  inclusive,  of  the  act  of  the  legislature  in  which  this 
company  was  chartered,  related  to  other  matters.     Section  6  of  the  act 
was  the  commencement  of  the  charter. 

2.  Bight  to  extend  road  to  Nashville  &  Chattanooga  Railroad. — This 
section  was  amended  by  Acts  Tenn.,  1851-2,  ch.  43,  so  that  the  railroad 
incorporated  above  should  extend  from  the  town  of  Winchester  to  the 
Nashville  &  Chattanooga  Railroad.     Act  passed  December  5,  1851.     Under 
this  authority  the  road  from  Winchester  to  Decherd  was  built. 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         157 

3.  General  powers. — As  will   be  noticed,  the  above  section  of   the 
charter  confers  specifically  certain  general  powers,  and,  in  addition,  pro- 
vides that  it  "shall  have  and  enjoy  all  the  rights  and  privileges  secured 
to  the  \anhvllle  &  Cluittnn<»nj<i  Rullnxid  Umnpnny,  and  that  the  road  shall 
be  built  and  constructed  agreeable  to  the  requirements  of  said  charter." 
This  being  so,  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  having 
become  the  lawful  owner  and  purchaser  of  the  property,  franchises,  etc., 
of  this  company,  is  now  entitled  on  that  line  to  all  the  rights,  privileges, 
and  franchises  of  its  own  charter.     For  said  privileges  and  franchises, 
see  charter  of  Nashville  &  Chattanooga  Railroad  Company,  ch.  1,  herein. 

4.  May  lease  road  to  Nashville  &  Chattanooga  Hailroad  Company. 
— By  Acts  Tenn.,  1857-8,  ch.  8,  p.  5,  this  company  was  authorized  to 
lease  its  road  to  the  Nashville  &  Chattanooga  Railroad  Company. 

5.  Incorporated  in  what  states. — In  addition  to  this  charter,  granted 
by  the  State  of  Tennessee,  the  company  was  also  incorporated  in  Ala- 
bama by   Acts  18f>5-6,   No.   312,  p.  314,  which  was  amended  by  Acts  of 
1857-8.  p.  162.     As  that  part  of  the  road  covered  by  the  Alabama  charter 
was  never  built,  however,  it  is  useless  to  insert  said  charter  in  this  com- 
pilation.    Reference  is  made  to  it  here  as  a  matter  of  history. 

6.  Right  to  extend  road  to  Fayetteville. — This  railway  was  char- 
tered to  run  from  Winchester  to  the  state  Hue,  in  the  direction  of  Hunts- 
ville,  Ala.     When  it  had  been  built  to  a  point  at  or  near  Elora,  Tenn.. 
the  legislature  of  Tennessee  passed  an  act  allowing  it  to  extend  its  road 
to  Fayetteville,  which  was  done.     See  Acts  Tenn.,  1851-2,  ch.  206,  p.  310, 
sec.  7.  which  act  is  inserted  in  the  next  chapter.     The  road  from  Elora 
to  the  state  line  was  built  under  the  original  charter. 

7.  The  legislature,  in  granting  a  charter  to  one  railway,  may  lawfully 
confer  upon  it  all  the  rights,   franchises,   etc.,  of  another,  by  simply 
referring  to  it  in  the  manner  that  this  was  done.     See  8  Lea,  427. 

SEC.  7.  Capital,  value  of  shares,  books  opened,  commis- 
sioners.— Be  it  enacted.  That  the  capital  stock  of  said  com- 
pany  shall  be  twenty-five  thousand  dollars,  to  be  divided  into 
shares  of  twenty-five  dollars  each;  and  books  for  Valueof 
subscription  of  stock  in  said  railroad  shall  be  opened  shares- 
on  the  first  Monday  of  July,  1850,  and  kept  open  for  one  month 
every  day,  Sundays  excepted,  from  10  o'clock  A.M.   Books 
until  4r  o'clock  P.M.,  at  the  following  places,  and  by  °i*ne(J- 
the  following  persons,  to  wit:  At  Winchester,  by  James  Har- 
ris, W.  W.  Braxeton,  Maj.  Win.  C.  Venable,  lien-  Con,misslon. 
jamin  Deckard,  and  Dr.  Wallace  Estill  ;  at  Salem,  ers- 
by    William   C.    Handley,  John    P.   White,   George   Mosely, 
Charles  P.  Blanton,  and  Robert  C.  Smith. 

This  section  was  amended  by  Acts  Tenn.,  1851-2,  ch.  43,  so  as  to 
allow  the  increase  of  the  capital  stock  of  said  company  to  seven  hundred 
thousand  dollars;  and  that  to  entitle  any  stockholder  to  act  as  a  director 
he  shall  only  be  required  to  own  stock  to  the  amount  of  five  hundred 
dollars.  (Act  passed  December  5,  1851.) 

SEC.  8.  Commissioners  to  act  until  directors  elected.—^ 

it  enacted,  That  William  E.  Venable,  Dr.  William  Estill,  Jos. 


158    DEED,  ETC.,  RELATING  TO  FAYETTEVILLE  BRANCH 

W.  Carter,  Peter  S.  Deckard,  Alfred  Henderson,  Thomas 
Finch,  Hugh  Francis,  George  W.  White,  Thomas  H.  Garner, 
George  W.  Hunt,  David  Arnett,  S.  S.  Mathews,  Thomas  F. 
Mosely,  Clinton  A.  Hunt,  and  John  Handley,  or  a  majority  of 
them,  be,  and  they  are  hereby,  constituted  a  board  of  commis- 
sioners to  superintend  and  manage  all  the  affairs  of  said  com- 
pany, until  it  shall  be  fully  organized,  by  the  election  of  a 
board  of  directors,  as  prescribed  by  the  charter  of  the  Nashville 
&  Chattanooga  Railroad  Company.  (Acts  Tenn.,  1849-50, 
ch.  56,  p.  167;  passed  February  9,  1850. 

1.  Qualification  of  directors. — By  Acts  1859-60,  ch.  90,  p.  343,  sec.  20, 
it  was  provided  ''that  any  person  holding  any  amount  of  stock  in  the 
Winchester  &  Alabama  Railroad  Company  shall  be  eligible  to  be  a  direc- 
tor in  said  road  or  company.  *' 

2.  May  use  T  rail. — By  Acts  Tenn.,  1866-67,  ch.  48,  p.  130,  this  com- 
pany was  authorized,  in  rebuilding  its  road,  to  use  solid  T  rails  of  not 
less  than  fifty  pounds  to  the  lineal  yard,  and  all  branch  roads  which 
may  wish  to  use  such  bars,  fifty  pounds  to  the  yard. 


CHAPTER  VIII. 

DEED  TO,  AND  ACTS  RELATING  TO   THE    WINCHESTER  &  ALA- 
BAMA RAILROAD  COMPANY. 

DEED  FROM  MEMPHIS  &  CHARLESTON  RAIL- 
WAY COMPANY  TO  NASHVILLE,  CHATTA- 
NOOGA &  ST.  LOUIS  RAILWAY  COMPANY, 
OF  WINCHESTER  &  ALABAMA  RAILROAD 
AND  THE  McMINNVILLE  &  MANCHESTER 
RAILROAD. 

This  deed,  made  and  entered  into  by  and  between  the  Mem- 
phis &  Charleston  Railway  Company,  the  party  of  the  first  part, 
and  the  Nashville,  Chattanooga  &  St.  Louis  Railway  Company, 
the  party  of  the  second  part,  both  of  said  parties  being  corpora- 
tions chartered  by  the  State  of  Tennessee,  witnesseth :  The  party 
of  the  first  part,  for  and  in  consideration  of  the  receipt  from  the 
party  of  the  second  part  of  three  hundred  and  twenty  thousand 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         159 

dollars  of  six  per  cent,  currency  bonds,  executed  by  the  party 
of  the  second  part,  dated  January  1,  1877,  payable  to  the 
holder  thereof,  in  lawful  money  of  the  United  States,  forty 
years  after  date,  in  the  city  of  New  York,  with  six  per  cent, 
interest  coupons  thereto  attached,  payable  in  manner,  form, 
and  place  as  said  bonds,  and  on  the  following  terms,  to  wit:  Re- 
spectively, July  1,  1878, 'and  at  intervals  of  six  months  to  and 
on  the  date  of  the  maturity  of  said  bonds,  both  such  bonds  and 
coupons  secured  by  the  first  mortgage  on  the  property  hereby 
conveyed,  this  day  executed  by  the  party  of  the  second  part 
to  Abrin  Iselin  and  Richard  T.  Willson,  of  the  city,  county, 
and  State  of  New  York,  and  in  further  consideration  of  the 
party  of  the  second  part,  paying  to  L.  D.  Hickerson  and  A. 
Power  the  sum  of  $3,000,  for  their  surrender  of  a  lease  held  by 
them  from  the  party  of  the  first  part,  conveying  all  or  part  of 
the  property  hereby  conveyed;  and  further  consideration  of 
the  stipulations,  undertaking,  and  obligation  on  the  part  of  the 
party  of  the  second  part  to  be  done  and  performed  as  herein- 
after stated,  hath  granted,  bargained,  sold,  assigned,  transferred, 
enfeotfed,  and  conveyed,  and  hereby  bargains,  sells,  grants,  as- 
signs, transfers,  enfeotfes,  and  conveys,  unto  the  party  of  the 
second  part,  its  successors  and  assigns  forever,  all  and  singular 
the  following  property,  viz. : 

The  Winchester  &  Alabama  Railroad,  beginning  at  Decherd, 
Franklin  county,  Tenn.,  on  the  line  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  and  extending  to  Fayetteville,  in 
Lincoln  county,  Tenn.,  a  distance  of  forty  miles  of  completed 
road,  more  or  less;  also  McMinnville  &  Manchester  Road,  begin- 
ning at  Tullahoma,  Coffee  county,  Tenn.,  and  extending  by  way 
of  Manchester  to  McMinnville,  Warren  county,  Tenn.,  a  distance 
of  about  thirty-four  miles  of  completed  road,  making  a  total 
length  of  about  seventy-four  miles  of  railroad,  together  with 
all  and  singular  appurtenances  thereof,  and  all  equipments, 
lands,  tracks,  lines,  rails,  bridges,  ways,  rights  of  way,  and  ma- 
terial, buildings,  fences,  erections,  walls,  fixtures,  privileges, 
rights,  interest,  real  estate,  personal  property,  leaseholds,  and 
other  things  of  every  kind,  nature,  and  character  l>elonging  and 


160    DEED,  ETC.,  RELATING  TO  FAYETTEVILLE  BRANCH 

appertaining  to  said  railroad;  and  also  all  the  tools,  incomes, 
uses,  and  profits  to  be  had  or  demanded  from  the  same  or  any 
part  or  portion  thereof;  and  also  all  railway  stations  and  de- 
pots, with  all  the  appurtenances  necessary  and  convenient  for 
the  sole,  complete,  and  entire  use  and  operation  and  mainte- 
nance of  the  said  road  or  railways  herein  conveyed,  or  any  part 
of  them;  and  also  all  the  rolling  sto'ck,  locomotives,  engines, 
tanks,  cars,  carriages,  tools,  and  machinery  on  said  roads,  or 
any  of  them,  at  the  date  of  this  deed;  and  also  all  the  improve- 
ments and  additions  made  to  any  or  all  of  said  properties,  es- 
Rignts,  privi-  tates,  roads,  railways,  and  appurtenances  also  all 

ties,  and  fran-  the  rights,  privileges,  immunities,  and  franchises  of 
chises  con- 
veyed, the  party  of  the  first  part,  pertaining  to  the  roads 

and  railways  herein  conveyed,  or  any  of  them,  or  the  oper- 
ation, use,  and  enjoyment  thereof;  and  also  all  right  to  use 
the  road,  tracks,  sidings,  turnouts,  and  switches  belonging  and 
appertaining  to  said  road  hereby  conveyed,  or  either  of  them, 
as  fully  and  effectually  as  the  party  of  the  first  part  is  or  may 
be  by  law  entitled  to  have,  hold,  and  use  the  same,  and  the  said 
party  of  the  first  part  hereby  covenants  and  agrees  to  and  with 
the  said  party  of  the  second  part,  its  successors  and  assigns,  that 
the  title  to  the  property  hereby  conveyed  is  free  from  all  in- 
cumbrances,  and  that  it  will  forever  warrant  and  defend  the 
title  to  said  property  against  the  lawful  claims  of  all  persons 
whomsoever. 

The  said  party  of  the  first  part  hereby  also  assigns,  trans- 
fers, and  conveys  to  the  party  of  the  second  part  its  right  of 
indemnity  indemnity  secured  by  the  deposit  of  certain  bonds 
ferred.  in  the  Fourth  National  Bank  in  Nashville,  Tenn., 

to  indemnify  the  said  party  of  the  first  part  against  loss,  det- 
riment, or  damages  from  a  certain  suit  of  the  United  States 
against  the  McMinnville  &  Manchester  Railway;  and  also  the 
contract  of  indemnity  made  by  the  State  of  Tennessee  with  the 
party  of  the  first  part  to  indemnify  against  said  suit. 

As  a  further  consideration  for  this  conveyance,  the  party  of 
the  second  part  stipulates  that  it  will  run  and  manage  the  rail- 
roads as  required  by  the  contracts  of  purchase  made  by  the 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          161 

pjirty  of  the  first  part  with  the  State  of  Tennessee  at  the  time 
it  purchased  them  from  said  state. 

In  witness  thereof,  the  said  parties  of  the  first  and  second 
l>:irts,  by  their  respective  presidents  and  secretaries,  pursuant 
to  the  authority  granted  by  their  respective  boards  of  directors, 
have  hereunto  subscribed  their  names  and  affixed  their  cor- 
porate seals,  this,  the  twenty-eighth  day  of  July,  1877. 

THE  MEMPHIS  &  CHARLESTON  RAILROAD  COMPANY, 
In  presence  of  By  R.  T.  WH.SON,  President. 

W.  H.  CLARKSON,  as  to  R.  T.  WILSON,  1'i'exident. 

[SEAL.]     By  THE  MEMPHIS  &  CHARLESTON  RAILWAY  Co., 

By  T.  R.  CRUSE,  Secretary. 

[SEAL.]     NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 
R.  C.  BRANSFORD,  By  E.  W.  COLE,  President. 

Secretory  Naxlwille,   Chattanooga  &  St.  Louis  Railway. 

'  The  foregoing-  deed,  with  acknowledgments,  etc.,  is  registered  in 
Franklin  county,  in  book  1,  pp.  553-555;  in  Lincoln  county,  in  book  Z, 
pp.  216-221;  in  Coffee  county,  in  book  P,  pp.  453,  454;  and  in  Warren 
county,  in  book  8,  pp.  296-299. 

DECREE  VESTING  TITLE  TO  WINCHESTER  & 
ALABAMA  RAILROAD  AND  McMINNVILLE 
&  MANCHESTER  RAILROAD  IN  MEMPHIS  & 
CHARLESTON  RAILROAD  COMPANY. 

THE  STATE  OF  TENNESSEE  r.  THE  EDGEFIELD  &  KENTUCKY 
RAILROAD  COMPANY,  McMiNNvrLLE  &  MANCHESTER,  C.  N., 
WINCHESTER  &  ALABAMA,  C.  M.,  ET  AL. 

CHANCERY  COURT  AT  NASHVILLE,  TEXN. 

Be  it  remembered,  That  on  the  twenty-eighth  day  of  June, 
1875,  before  the  Hon.  Thomas  Malone,  presiding  as  special 
chancellor,  regularly  and  legally  appointed  vice  the  Hon.  Wil- 
liam T.  Cooper,  chancellor,  who  is  of  counsel  herein,  this  cause 
came  on  to  t>e  finally  heard  as  to  the  Winchester  &  Alabama 
Railroad  Company  and  the  McMinnville  &  Manchester  Railroad 
Company,  on  the  report  of  the  commissioners  for  the  sale  of  de- 
delinquent  railroad  and  accomj)anying  vouchers  therewith  filed; 
11 


162      DECREE  RELATING  TO  FAYETTEVILLE  BRANCH 

which  report  and  vouchers  being  read,  heard,  and  understood, 
and  being  unexcepted  to,  is  in  all  things  confirmed.  And  from 
said  report,  the  accompanying  vouchers,  and  the  former  proceed- 
ings, reports,  and  decrees  of  this  court  in  the  cause,  it  appears  to 
the  satisfaction  of  the  court,  and  it  is  hereby  ordered,  adjudged, 
and  decreed,  that  the  Memphis  &  Charleston  Railroad  Com- 
pany is,  under  the  decrees,  sales,  and  confirmative  decrees  of 
sales  in  this  cause,  the  purchaser  of  the  Winchester  &  Alabama 
Railroad  and  the  .McMinnville  &  Manchester  Railroad,  with 
their  irons,  equipments,  right  of  way,  real  and  personal  prop- 
erty, franchises,  and  privileges;  and  that  the  said  Memphis  & 
Charleston  Railroad  Company  has  fully  and  entirely,  in  com- 
pliance with  the  sales  aforesaid,  paid  to  the  State  of  Tennessee, 
as  shown  by  said  report  and  vouchers,  the  purchase  price  of 
said  railroad  in  state  bonds  and  money,  as  required  by  the 
terms  of  said  sales  and  purchases  and  by  the  former  decrees  of 
this  court,  and  this  court  being  of  opinion  that  the  Memphis  & 
Charleston  Railroad  Company  is  entitled  to  a  final  decree  vest- 
ing said  company  with  the  absolute  titles  to  said  railroads, 
their  property  and  franchises: 

Now,  therefore,  it  is  hereby  ordered,  adjudged,  and  decreed, 
that  all  the  right  and  title  of  the  state  and  of  all  parties  to  this 
litigation,  and  especially  of  the  Winchester  &  Alabama  Rail- 
road Company,  its  stockholders  and  creditors  and  all  other 
persons  interested  therein,  in  and  to  the  Winchester  &  Alabama 
Railroad,  its  property,  real,  personal  and  mixed,  and  all  its 
franchises  and  privileges,  be  divested  out  of  them  and  vested 
in  the  Memphis  &  Charleston  Railroad  Company  forever,  free 
from  and  finally  discharged  of  all  liens  and  charges  existing 
heretofore,  but  subject  to  the  terms,  stipulations,  and  condi- 
tions of  the  contracts,  except  as  to  the  purchase  money  paid, 
all  of  which  is  finally  ordered  and  decreed.  At  the  request  of 
the  Memphis  &  Charleston  Railroad  Company,  the  divesting 
and  vesting  of  the  title  in  and  to  the  McMinnville  &  Manches- 
ter Railroad,  its  property  and  franchises,  is  deferred  until  the 
Memphis  &  Charleston  Railroad  Company  directs  and  requests 
how  and  to  whom  it  shall  be  made.  The  clerk  and  master  will 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.          1H3 

furnish  the  Memphis  &  Charleston  Railroad  Company  with  a 
certified  copy  of  the  decree  for  registration. 

The  above  decree  may  be  found  in  minute  book  No.  2,  p.  438,  of  the 
chancery  court  at  Nashville.  Tenn.  It  is  also  registered  with  proper 
certificates  in  the  register's  office  of  Warren  county,  in  book  7,  No.  7, 
pp.  72,  73;  in  Coffee  county,  in  book  vol.  No.  2  (trust  deeds,  etc.),  pp.  4 
and  5. 

ACTS  TENNESSEE  RELATING  TO  WINCHESTER 
&  ALABAMA  RAILROAD  COMPANY. 

1.  Winchester  &  Alabama  Railroad  Company  authorized  to 

extend  road  from  Winchester  to  Nashville,  Chatta- 
nooga &  St.  Louis  Railway;  capital  increased. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  tlte 
State  of  Tennessee,  That  the  sixth  section  of  an  act  passed  the 
ninth  day  of  February,  1850,  ch.  56,  entitled,  "An  act  to 
charter  a  railroad  from  Nashville  to  the  Alabama  line,"  be, 
and  the  same  is  hereby,  so  amended  as  that  the  railroad  incor- 
porated by  virtue  of  the  provisions  of  the  above  recited  act, 
called  the  Winchester  &  Alabama  Railroad  Company,  shall 
extend  from  the  town  of  Winchester  to  the  Nashville  &  Chatta- 
nooga Railroad. 

SEC.  2.    Be  it  enacted,  That  the  seventh  section  of  said  act 
of  incorporation  be,  and  the  same  is,  amended  so  as  to  increase 
the  capital  stock  of  said  company  to  seven  hundred  Caplta, 
thousand  dollars,  and   that,   to  entitle  any  stock-  Increase<1- 
holder  to  act  as  a  director  in  said  company,  he  shall  only  be 
required  to  own  stock  to  the  amount  of  five  hundred  dollars. 
(Acts  Tenn.,    1851-52,   ch.    43,    p.    45;   passed  December  5, 
1851.) 

2.  Winchester  &  Alabama  Railroad  Company  authorized  to 

construct  road  to  Fayetteville,  how. 

SEC.  7.  Be  it  further  enacted,  That  when  fifteen  thousand  dol- 
lars additional  stock  in  the  Winchester  &  Alabama  Railroad 
Company  shall  be  taken  by  citizens  of  Lincoln  county,  or  by 
others  in  their  behalf,  said  company  shall  have  j>ower  to  extend 
their  main  trunk  road  to  Fayetteville,  in  said  county,  with  all 
the  rights,  powers,  and  privileges  given  to  said  company  by 


164  ACTS    RELATING    TO    FAYETTEVILLE    BRANCH 

their  original  charter,  and  all  the  acts  passed  amendatory  thereof, 
and  said  extension  shall,  to  all  intents  and  purposes,  be  and 
form  a  part  of  the  main  trunk  of  said  road,  as  fully  and  effect- 
ually as  if  the  same  had  been  authorized  by  the  original  charter 
or  the  amendments  as  aforesaid;  and  should  said  company  con- 
struct their  said  railroad  to  Fayetteville  in  the  same  manner  and 
style  of  work  as  required  by  the  charter  aforesaid,  then  the 
charter  herein  granted  to  the  Central  Union  Railroad  shall  be 
void.  (Acts  Tenn.,  1851-2,  ch.  206,  p.  310,  sec.  7;  passed 
February  18,  1852.) 

3.  Resolution  directing  investigation  of  condition  of  road. 

By  Acts  Tenn.,  1868-9,  ch.  27,  p.  379,  the  committee  on 
internal  improvements  was  directed  to  examine  into  the  condi- 
tion of  this  road  and  report  to  the  general  assembly. 

4.  State  aid  to  tbe  Winchester  &  Alabama  Railroad. 

Many  acts  of  the  legislature  of  the  State  of  Tennessee  were 
passed  authorizing  state  aid  to  be  granted  to  the  Winchester  & 
Alabama  Railroad  for  the  purpose  of  building  and  equipping  its 
road.  The  state  aid  was  given  by  having  the  governor  to  in- 
dorse the  bonds  of  the  road  on  behalf  of  the  state.  These  acts 
are  quite  lengthy,  and  are  so  seldom  required,  that  for  the  pur- 
pose of  space  and  economy  it  is  not  deemed  advisable  to  insert 
them  in  full  in  this  compilation,  but  simply  to  refer  to  the  act 
and  page  where  they  can  be  found. 

Below  will  be  found  all  acts  relating  to  this  subject,  set  out 
in  the  order  of  their  passage: 

Acts  1851-2,  ch.  151,  governor  authorized  to  issue  bonds 
on  certain  conditions.  For  conditions,  see  act. 

Acts  1853-4,  ch.  131,  sec.  1,  state  aid  to  the  extent  of  $10,- 
000  a  mile  within  the  limits  of  state. 

Acts  1855-6,  ch.  54,  p.  63,  allows  two  years  extra  time  for 
company  to  bring  itself  within  provisions  of  Acts  February  8, 
1854. 

Acts  1855—6,  ch.  120,  p.  143,  sec.  9,  bonds  of  state  author- 
ized to  be  issued  to  amount  not  exceeding  $50,000,  to  aid  in 


NASHVILLE,    CHATTANOCMIA    <fe    ST.    LOUIS    RAILWAY.          165 

constructing  a  bridge  across  Elk  river.  See,  also,  pp.  146, 
456,  479,  for  additional  aid. 

Acts  1855-6,  ch.  235,  p.  478,  governor  authorized  to  issue 
bonds  to,  under  certain  conditions. 

Acts  1857-8,  ch.  41,  p.  67,  sec.  2,  grants  state  aid  for 
bridges. 

Acts  1865-6,  ch.  14,  p.  33,  sec.  1,  governor  authorized  to 
issue  bonds  to  the  W.  &  A.  R.  R.  Co.  to  amount  of  $372,000. 

Acts  1866-7,  ch.  12,  p.  11,  sec.  3,  governor  authorized  to 
issue  bonds  to  the  W.  &  A.  R.  R.  Co.  to  the  extent  of  $150,000. 

Acts  1867-8,  ch.  17,  p.  14,  sec.  3,  governor  authorized  to 
issue  bonds  to  the  amount  of  $300,000. 


166  ABSTRACT    OF    TITLE    TO    M'ltflNNVILLE    BRANCH 


CHAPTER   IX. 

THE  MCMINNVILLE  &  MANCHESTER  RAILROAD  COMPANY. 
(Now  FORMS  PART  OF  MCMINXVILLE  BRANCH.) 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— Under  the  general  improvement  laws  of  1851-2,  and 
amendments  thereto,  the  State  of  Tennessee,  through  its  gov- 
ernor, indorsed  the  bonds  of  the  various  railroads  in  the  state, 
to  aid  in  their  construction,  retaining  a  lien  on  the  respective 
roads  so  assisted,  as  security  therefor.  Among  the  number  was 
the  McMinnville  &  Manchester  Railroad  Company.  Default 
having  been  made  in  the  payment  of  interest  on  the  bonds  is- 
sued for  its  benefit,  a  bill  was  tiled  in  the  chancery  court  at 
Nashville,  Tenn. ,  in  the  name  of  the  state  against  the  Edgefield 
&  Kentucky  Railroad  Company  et  al.,  to  which  the  said  Mc- 
Minnville &  Manchester  Railroad  Company  was  also  made  a 
defendant,  seeking  to  enforce  the  state's  lien  or  statutory  mort- 
gage. This  bill  was  filed  in  pursuance  of  an  act  of  the  legisla- 
ture of  1870-1,  ch.  23,  p.  25,  authorizing  the  sale  of  all  delin- 
quent roads,  the  tenth  section  of  which  provided  "that  upon 
the  sale  of  any  of  the  franchises  of  either  of  the  railroad  com- 
panies by  the  commissioners,  under  the  provisions  of  this  act, 
all  the  rig /its,  privilege*,  and  immunities  appertaining  to  the 
franchise  so  sold,  under  its  act  of  incorporation,  and  the  ainend- 
inent*  thereto,  and  the  general  improvement  law  of  the  state, 
and  acts  amendatory  thereof,  shall  be  transferred  to  and  vest 
in  such  purchaser,  and  the  purchaser  shall  hold  said  franchise 
subject  to  all  liens  and  liabilities  in  favor  of  the  state,  as  now 
provided  by  law,  against  the  railroad  companies." 

On  April  7,  1871,  a  decree  was  entered  in  said  case  in  min- 
ute book  T,  p.  14,  ordering  the  sale  of  said  McMinnville  & 
Manchester  Railroad,  its  franchises,  property,  etc.  It  appears 
that  great  uncertainty  existed  as  to  the  right  of  the  state  to 


NASHVILLE,    CHATTANOCKiA    4    ST.    LOUIS    RAILWAY.         167 

enforce  said  lien  before  the  maturity  of  the  bonds,  and,  in  view 
of  that  fact,  an  agreement  was  entered  into  between  all  parties, 
and  made  a  part  of  the  decree  authorizing  the  road  to  be  sold, 
and  the  clerk  and  master  to  take  proof  and  rejwrt  what  would 
be  a  fair  and  reasonable  minimum  value  of  the  property  and 
franchises  of  the  road  in  bonds  of  the  state,  said  value,  how- 
ever, in  no  event,  to  be  fixed  at  less  than  $300,000  in  bonds  of 
the  state,  with  coupons  of  January,  1871,  and  subsequent 
coupons,  attached.  The  decree  further  provided  that  the 
McMinnville  &  Manchester  Railroad  Company  should  be  given 
the  exclusive  right,  within  sixty  days  from  the  date  of  the  fixing 
of  such  minimum  value  by  the  court,  to  purchase  said  road  at 
the  price  fixed.  It  was  further  agreed  and  made  a  part  of  the 
decree  that  the  sale  of  the  road  should  not  prejudice  the  right 
of  the  railroad  company  to  prosecute  and  receive  the  benefit  of 
any  suit  they  had  already  commenced,  or  might  thereafter  com- 
mence, against  any  person  or  persons,  or  corporations,  for  debts, 
damages,  demands,  or  choses  in  action  that  were  then  due  said 
company,  including  their  right  to  prosecute  any  receiver  ap- 
pointed by  the  state,  etc. 

It  will  further  appear  from  said  decree  that  the  intention  of 
all  parties,  both  of  the  state  and  defendants,  was  that  the  pro- 
ceeds of  this  sale  should  be  a  full  satisfaction  of  all  debts,  de- 
mands, and  liens  tfte  state  held  against  said  railroad  company. 

The  decree  referred  to  above  being  quite  lengthy,  only  a  synopsis  is 
here  given.  That  part  set  out  above  in  italics  is  important  in  throwing 
light  upon  the  contention  of  the  State  of  Tennessee  in  its  McMinuville 
&  Manchester  Railroad  claim,  now  pending  before  the  committees  on  mil- 
itary affairs  of  the  senate,  and  war  claims  of  the  house  of  representa- 
tives, of  the  fifty-fourth  congress,  which  claim  is  also  being  contended 
for  by  the  Nashville,  Chattanooga  &  St.  Louis  Railway. 

On  July  1,  1871,  the  clerk  and  master  reported  that  $308,- 
750  would  be  a  fair  and  reasonable  price  for  the  road,  but  the 
court,  upon  exceptions  filed,  overruled  the  clerk  and  master's 
report,  and  fixed  the  minimum  price  at  $300,000  in  l>onds  of 
the  state  with  coupons  of  January,  1871,  attached,  and  a  decree 
was  entered  accordingly  in  minute  book  T,  pp.  358,  359. 

On  July  6,  1871,  the  court  adjudicated  many  matters  in- 
volved. See  decree  in  minute  book  T,  p.  3*59. 


168  ABSTRACT    OF    TITLE    TO    M'MINNVILLE    BRANCH 

On  September  30,  1871,  a  decree  was  entered  reciting, 
among  other  things,  that  the  clerk  and  master  had  sold  the  Mc- 
Minnville  &  Manchester  Railroad  to  the  company  itself.  See 
minute  book  T,  p.  528. 

The  McMinnville  &  Manchester  Railroad  Company  never 
complied  with  the  terms  of  sale,  and,  on  June  28,  1875, 
another  decree  was  entered  confirming  the  sale  of  this  road  and 
the  Winchester  &  Alabama  Railroad,  together  with  their  rights, 
franchises,  etc.,  to  the  Memphis  &  Charleston  Railroad  Com- 
pany. See  minute  book  No.  2,  p.  438,  which  decree  was  duly 
registered  in  the  register's  office  of  Warren  county,  in  book  7, 
No.  7,  pp.  72,  73;  in  Coffee  county,  in  book  vol.  No.  2,  trust 
deeds,  etc.,  pp.  4,  5  [book  E,  p.  109];  in  Franklin  county,  in 
book  6,  p.  40,  and  in  trust  book  No.  1,  pp.  354-5-6. 

1.  This  decree  is  also  set  out  herein,  in  the  preceding-  chapter,  among 
the  decrees,  acts,  etc.,  relating-  to  the  Winchester  &  Alabama  Railroad 
Company. 

2.  It  will  be  noticed  that  the  above  referred  to  decree  did  not  divest 
and  vest  title  to  the  McMinnville  &  Manchester  Railroad  in  the  Memphis 
&  Charleston  Railroad  Company,  but  reserved  that  until  the  said  Mem- 
phis &  Charleston  Railroad  Company  should  determine  in  wham  the  title 
should  be  vested.     Subsequently,  however,  on  July  10,  1875,  the  Memphis 
&  Charleston  Railroad  Company  elected  to  have  the  title  to  this  road 
also  taken  in  its  own  name,  and  a  decree  was  entered  accordingly.     See 
minute  book  No.  3,  p.  58,  which  decree  is  also  set  out  herein  in  next 
chapter. 

On  July  28,  1877,  the  Memphis  &  Charleston  Railroad  Com- 
pany sold  this  road,  together  with  the  Winchester  &  Alabama 
Railroad,  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway, 
for  the  sum  of  $320,000  of  6  per  cent,  currency  bonds  exe- 
cuted by  the  latter  company  January  1,  1877,  and  other  con- 
siderations. See  deed  in  preceding  chapter.  This  deed  was 
duly  acknowledged  and  registered  in  the  register's  office  of 
Franklin  county,  in  book  1,  pp.  553-555;  in  Lincoln  county,  in 
book  Z,  pp.  216-221;  in  Coffee  county,  in  book  P,  pp.  453, 
454;  and  in  Warren  county,  in  book  8,  pp.  296-299. 

This  purchase  was  legal.  Under  Acts  Tenn.,  1871.  ch.  69,  which 
superseded  the  Acts  of  1871,  ch.  22,  it  was  provided  that  "every  railroad 
corporation  in  this  state,  whether  created  under  a  general  or  special 
law,  shall  have  the  power  to  acquire  by  purchase  or  other  lawful  con- 
tract, and  have,  hold,  use,  and  operate,  any  railroad,  with  its  franchises, 
belonging  to  any  other  railroad  company." 


NASHVILLE,    CHATTANOOGA    A    8T.     LOUIS    RAILWAY.          169 

What  franchises,  etc  .  passed  to  Nashville.  Chattanooga  & 

St.  Louis  Railway  under  this  Sale.— In  addition  to  the  prop- 
erty, right  of  way,  lands,  tracks,  etc.,  therein  conveyed,  the 
deed  from  the  Memphis  &  Charleston  Railroad  Company  of 
the  McMinnville  &  Manchester  Railroad,  above  referred  to, 
specifically  provided  for  the  transfer  of  all  the  rights,  privi- 
leges^ immunities,  and  franchuw*  of  that  company.  These 
rights,  franchises,  etc.,  are  largely  set  out  in  the  charter,  and 
amendments  thereto,  of  the  McMinnville  &  Manchester  Rail- 
road, which  may  be  found  further  on  in  this  chapter,  but,  by 
Acts  Tenn.,  1851-2,  ch.  269,  p.  462,  sec.  5,  all  the  rights, 
powers,  and  privileges  of  the  Nashville  c£  Chattanooga  Rail- 
road charter  were  also  conferred  upon  that  company.  This 
being  so,  the  Nashville,  Chattanooga  &  St.  Louis  Railway, 
as  the  lawful  purchaser  thereof,  is  now  entitled,  on  the  line  of 
that  road,  to  all  the  rights,  franchises,  etc.,  of  its  own  charter 
as  well  as  those  contained  in  the  charter  of  the  said  McMinn- 
ville &  Manchester  Railroad  Company,  and  amendments  thereto. 

1.  For  franchises,  etc.,  contained  in  charter  of  Nashville  «fe  Chatta- 
nooga Railroad  Company,  see  ch.  1,  herein. 

2.  By  decree  of  July  fi,  1871,  as  entered  in  minute  book  Y,  p.  369,  of 
the  chancery  court  at  Nashville,  Tenn.,  and  decree  of  June  28,  1875,  as 
entered  in  minute  book  No.  2,  p.  438,  all  the  rights,  privileges,  immuni- 
ties, franchises,  etc.,  of  the  McMinnville  &  Manchester  Railroad  Com- 
pany were  vested   in   the  Memphis  «fe  Charleston  Railroad  Company. 
Hence,  the  latter  company,  under  the  Acts  of  1871,  ch.  69,  and  acts 
amendatory  thereof,  could  make  a  legal  transfer  of  the  same  to  the 
Nashville,  Chattanooga  «fc  St.  Louis  Railway. 

3.  The  legislature  may  lawfully  confer  upon  one   company  all  the 
rights,  franchises,  etc.,  of  another,  by  simply  referring  to  it  in  the  man- 
ner that  this  was  done.     See  8  Lea  (Tenn.),  427. 

Width  Of  right  Of  way.— The  Nashville,  Chattanooga  &  St. 
Louis  Railway  having  become  the  lawful  purchaser  of  the 
road,  right  of  way,  easements,  franchises,  etc.,  of  the  McMinn- 
ville &  Manchester  Railroad  Company,  as  above  explained,  it 
is  now  entitled  to  the  franchises  contained  in  sees.  21  and  22  of 
its  charter,  as  well  as  to  sees.  23  and  24  of  its  own  charter  over 
the  line  of  that  road,  which  give  one  hundred  feet  on  each  side 
of  the  center  of  *the  road,  in  the  absence  of  any  contract  with 
the  original  landowner  to  the  contrary.  (5  Pick.,  293.) 

For  a  general  discussion  of  this  and  kindred  subjects,  together  with 
the  right  and  method  of  taking  more  than  one  hundred  feet  on  each  side 


170  ORIGINAL    CHARTER    OF    M^MINNVILLE    BRANCH 

of  the  center  of  the  road,  when  necessary  for  railroad  purposes,  see 
Eminent  Domain,  Right  of  W<iy,  herein.  Refer  to  index. 

Termini  of  McMinnville  &  Manchester  Railroad.  —  The 

McMinnvillo  &  Manchester  Railroad  Company  was  chartered 
by  Acts  Tenn.,  1849-60,  ch.  259,  p.  497,  to  establish  a  com- 
munication by  railroad  between  McMinnville,  Tenn.,  and  the 
Nashville  &  Chattanooga  Railroad  Company,  in  the  direction  of 
Manchester.  The  road  was  built  under  this  charter  from  the 
said  town  of  McMinnville  through  Manchester  to  Tullahoma, 
on  the  Nashville  &  Chattanooga  Railroad.  The  line  from 
McMinnville  to  Sparta  was  built  under  the  charter  of  the 
Southwestern  Railroad  Company,  though  by  Acts  Tenn., 
1851-2,  ch.  269,  p.  462,  sec.  11,  the  charter  of  the  McMinn- 
ville &  Manchester  Railroad  Company  was  extended  from 
McMinnville  to  Sparta,  on  condition  that  the  people  of  White 
county  should  make  the  same  to  McMinnville.  The  road  could 
have  been  extended  from  McMinnville  to  Sparta  under  this 
amendment,  instead  of  under  the  charter  of  the  Southwestern 
Railroad  Company,  as  the  people  of  White  county  subscribed 
bonds  as  therein  provided  for.  It  is  possible  that  the  road  may 
have  in  fact  been  extended  under  this  amendment,  though  the 
rights,  franchises,  etc.,  of  the  Southwestern  Railroad  Company 
were  also  purchased,  which  permitted  the  road  to  be  so  built. 
The  line  from  Sparta  to  Bon  Air  was  built  under  the  charter 
of  the  Bon  Air  Railroad  Company. 

For  charters  of  Southwestern  Railroad  Company  and  Bon  Air  Rail- 
road Company,  together  with  manner  of  acquiring  them,  refer  to  index. 

Distance  built  when  purchased  by  Nashville,  Chattanooga  & 

St.  Louis  Railway. — The  entire  line,  from  McMinnville  to  Tul- 
lahoma, had  been  constructed  when  purchased  by  the  Nashville, 
Chattanooga  &  St.  Louis  Railway. 

ORIGINAL  CHARTER  OF  McMINNVILLE  &  MAN- 
CHESTER RAILROAD  COMPANY. 

[Acts  Tennessee  1849-50,  ch.  259,  p.  4$7.] 

SECTION  i.  Incorporation,  name,  general  powers.—^  it 

enacted  by  the  General  Assembly  of  the  State  of  Tennessee,  That 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          171 

for  the  purpose  of  establishing  a  communication  by  railroad  be- 
tween McMinnville  and  the  Nashville  &  Chattanooga  Railroad 
in  the  direction  of  Manchester,  the  formation  of  a  company  is 
hereby  authorized,  which,  when  formed,  shall  be  a  l>ody  corpo- 
rate, by  the  name  and  style  of  the  McMinnville  &  Manchester 
Railroad  Company,   and    by  said    corporate   name 
shall    be  capable  in'  law  to  buy,   receive   by  gift, 
hold,  sell,  and  convey  real  and  personal  estate,  as  hereinafter 
provided,  make  contracts,  sue  and  be  sued,  to  make  Genera, 
by-laws,  and  to  do  all  lawful  acts  properly  incident  P°wers- 
to  a  corporation,  and  necessary  and  proper  to  the  transaction  of 
the  business  for  which  it  is  incorporated,  and  to  have  and  use 
a  common  seal,  and  the  same  to  alter  and  destroy  at  its  pleasure, 
and  shall  have  perpetual  succession  of  its  members. 

1.  General  powers.— Hy  Acts  Term.,  1851-52,  ch.  269,  p.  462,  sec.  5,  this 
charter  was  amended  so  that  the  company  should  have  and  enjoy  all  the 
rights,  powers,  and  privileges,  and  be  subject  to  all  the  liabilities  and 
restrictions,  prescribed  in  the  charter  of  the  Nashville  «fc  Chattanooga 
Railroad  Company,  and  amendments  thereto,  except  as  provided  other- 
wise therein.     See  act  itself  set  out  herein  in  next  chapter. 

2.  Scale  of  voting.  —  Hy  same  acts,  sec.  6,  a  settle  of  voting  was  pro- 
vided.    See  act  in  next  chapter. 

3.  Location. — By  same  act,  sec.  10.  the  road  was  required  to  be  located 
on  the  nearest  and  most  practicable  route  to  Nashville  &  Chattanooga 
Railroad  Company  from  McMinnville,  to  be  judged  of  by  the  president 
and  directors.     See  act  in  next  chapter. 

4.  By  same  act,  sec.   11,   the  charter  of  this  company  was  extended 
from  McMinnville  to  Sparta,  on  condition  that  the  people  of  White  county 
make  the  same  to  McMinnville.     See  act  in  next  chapter. 

SEC.  2.  Capital,  value  of  shares,  books  opened,  commis- 
sioners.—  Books  for  subscription  of  forty  thousand  shares  of 
the  capital  stock  of  said  company,  of  twenty-five  dollars  each, 
shall  be  opened  on  the  first  Monday  in  April  next,  1850,  and 
shall  be  kept  open  for  six  days,  between  the  hours  of  ten  o'clock 
in  the  morning  and  four  o'clock  in  the  evening  of  each  of  those 
days,  at  the  following  places,  and  by  the  following  commis- 
sioners, to  wit:  At  McMinnville,  by  William  White,  William 

C.  Smartt,  Geo.  R.  Smartt,  Stokely  I).  Rowan,  L.   Comm!sslon. 

D.  Mercer,  J.  Woodla,  R.  A.  Campl>ell,  and  Alex-  ers- 
ander  Black;  at  Manchester,  by  W.  P.  Hickerson,  W.  R.  Wil- 
son, M.  Stevens,  W.  Sherrel;  at  Hillsboro,  by  B.  T.  Hollins, 
Joseph  Howe,  and  J.  Charles. 


172  ORIGINAL    CHARTER    OF    M5MINNVILLE    BRANCH 

Capital  stock  increased. — By  Acts  1851-2,  ch.  269,  p.  462,  sec.  6.  the 
capital  stock  of  this  company  was  increased  to  8100,000,  and  the  com- 
pany was  granted  power  to  increase  it  to  $500,000. 

SEC.  3.  Subscriptions  to  StOCk,  payment.— The  said  com- 
missioners, or  a  majority  of  them,  at  each  of  the  places  afore- 
said, shall  receive  subscription  for  stock  in  the  said  railroad 
company  during  the  time  the  said  books  are  directed  to  be  kept 
open,  and  on  each  share  so  subscribed  shall  demand  and  receive 
the  sum  of  fifty  cents,  without  which  the  subscription  shall  be 
void. 

SEC.  4.  Deposit  of  money,  commissioners;  incorporation 

perfected,  When. — As  soon  as  the  time  for  receiving  subscrip- 
tion, as  aforesaid,  shall  have  expired,  the  said  commissioners 
shall,  respectively,  deposit  all  the  money  so  received  by  them 
in  some  incorporated  bank  redeeming  its  notes  in  specie,  to  the 
credit  of  the  McMinnville  &  Manchester  Railroad  Company, 
and  subject  to  the  order  of  the  president  of  the  board  of  com- 
missioners hereinafter  appointed,  and  shall  also  forward  a  correct 
list  of  all  the  subscribers  to  the  said  stock,  with  the  number  of 
shares  each  subscriber  has  taken,  to  a  board  of  commissioners 
Commis-  *°  be  composed  of  the  following  persons:  William 
sioners.  c  Smartt,  W.  M.  White,  George  R.  Smartt, 

David  Ramsey,  Sr.,  George  Stroud,  Thomas  Mabry,  W.  P. 
Hickerson,  W.  R.  Wilson,  B.  T.  Hollins,  and  Joseph  Howe, 
who  may  establish  rules  to  govern  their  proceedings,  choose 
their  own  president,  and  appoint  such  other  officers  and  agents 
as  they  may  think  proper,  and  prescribe  their  duties,  and  who, 
or  a  majority  of  whom,  shall  meet  at  McMinnville  on  the  third 
Monday  in  January  next,  ascertain  the  whole  number  of  shares 
taken  in  the  said  company,  and  publish  the  same  in  some  news- 
paper printed  in  McMinnville,  on  or  before  the  fourth  Monday 
in  January  next,  and  if  the  number  of  two  thousand  five  hun- 
dred shares  shall  have  been  subscribed,  on  each  of  which  there 
shall  have  been  paid  the  sum  of  fifty  cents,  the  McMinnville  & 
Manchester  Railroad  Company  shall  be  regarded  as 
formed,  and  tnenceforth  and  from  the  day  of 
closing  the  books  of  subscription  as  aforesaid;  and  said  sub- 
scribers to  the  stock  shall  form  a  body  politic  and  corporate  in 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          173 

deed  and  in  law,  by  the  name  and  for  the  purpose  aforesaid, 
and  in  all  things  to  \te  represented  by  the  board  of  commis- 
sioners aforesaid,  until  the  election  of  a  board  of  directors,  as 
hereinafter  presented. 

SEC.  5.  Books  kept  open,  when;  incorporation,  commis- 
sioners.— If,  on  closing  the  books  aforesaid,  the  number  of 
two  thousand  five  hundred  shares  shall  not  have  been  sub- 
scribed, then,  and  in  that  case,  the  said  board  of  commis- 
sioners, by  themselves  or  their  agents,  may  receive  subscrip- 
tions till  the  sum  of  two  thousand  five  hundred  shares  be  taken; 
and  whenever  that  number  of  shares  shall  be  subscril>ed,  the 

company  shall  IHJ  considered  as  formed,  as  having 

.  ,  ,  .  ,  ,      ,       ,  .  ,     Incorporation, 

a  corporate  existence  as  aforesaid,  and  of  which 

notice  shall  be  given  as  hereinafter  directed,  and  may  proceed 
to  survey  the  route  for  the  road,  and  to  make  an  estimate  of 
the  cost  of  its  construction;  nevertheless,  no  conclusive  and 
binding  location  of  the  road  shall  be  made  by  the  board  of 
commissioners,  but  the  same  shall  be  left  to  the  determination 
of  the  first  board  of  directors  chosen  by  the  stockholders,  and 
the  said  l>oard  of  commissioners  may,  by  themselves  or  their 
agents,  at  such  times  and  places  as  they  may  think  proper,  and 
upon  such  terms  as  to  time  and  manner  of  payment  as  they 
may  deem  expedient,  receive  additional  subscriptions  until  the 
number  of  two  thousand  five  hundred  shares  shall  have  been 
subscril)ed,  upon  which  the  company  may  be  formed,  and  the 
subscribers  shall  thenceforth  form  a  body  corporate  as  afore- 
said: Provided,  The  same  shall  be  done  on  or  before  the  first 
day  of  January,  1852;  and  for  the  residue  of  the  original  num- 
ber of  forty  thousand  shares,  the  said  corporation,  when  organ- 
ized, may,  in  like  manner,  receive  additional  subscriptions. 

SEC.  6.  Reduction  Of  Shares. — In  case  more  than  forty  thou- 
sand shares  shall  have  been  subscril>ed,  on  closing  the  books, 
when  they  are  first  opened,  the  shares  shall  be  reduced  to  that 
numl>er  by  deducting  the  surplus  shares  from  the  highest  sub- 
scribers, placing  them  on  equality  of  numl>ers  as  far  as  can  be 
done,  and,  after  such  reduction,  the  holders  of  the  remaining 
shares  shall  form  the  company,  and  be  interested  therein  in 


174:  ORIGINAL    CHARTER    OF    IVTMINNVILLE    BRANCH 

proportion  to  the  number  of  shares  which  they  may  then  re- 
spectively hold. 

SEC.  7.  Money  returned  if  shares  not  subscribed.— If,  on 

closing  the  books  on  the  first  day  of  January,  1852,  the  num- 
ber of  two  thousand  five  hundred  shares^  shall  not  have  been 
subscribed,  the  money  paid  by  each  subscriber  shall 
be  returned  to  him  by  the  said  board  of  commission- 
ers, after  defraying  the  expenses  of  opening  the  books,   and 
making  a  survey  and  map  of  the  route,  and  estimate  of  the 
cost  of  the  road,  which  said  commissioners  are  hereby  author- 
ized to  have  made  as  soon  as  practicable. 

SEC.  8.  President  and  directors,  how  chosen.— The  affairs 

of  said  company  shall  be  managed  by  a  board  of  directors,  to 
Board  of  consist  of  — ,  who  shall  be  chosen  by  the 

directors.  stockholders  from  their  own  body,  and  a  president 
of  the  compan}7  shall  be  chosen  by  the  directors  from  among 
their  own  members,  in  such  a  manner  as  the  regulations  of  the 
corporation  shall  prescribe. 

1.  By  Acts  Term.,  1855-56,  ch.  181,  p.  281,  any  stockholder  of  the  com- 
pany, without  regard  to  the  number  of  shares  he  owned,  was  made 
eligible  to  election  as  director. 

2.  The  president  and  directors  of  the  entire  system  of  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  of  which  this  road  now  forms  a  part, 
are  elected  under  the  charter  of  the  Nashville.  Chattanooga  &  St.  Louis 
Railway.     See  section  8  of  said  charter,  in  chapter  1  herein. 

SEC.  9.  Stockholders'  first  meeting,  directors'   election, 

by-laWS,  hOW  enacted. — As  soon  as  the  number  of  two  thou- 
sand five  hundred  shares  shall  have  been  subscribed,  it  shall  be 
the  duty  of  the  commissioners  appointed  to  declare  the  same, 
to  appoint  a  time  for  the  stockholders  to  meet  at  McMinnville, 
and  to  give  notice  thereof  by  publication  in  -  -  newspaper, 
at  which  time  and  place  the  said  stockholders,  in  person  or  by 
Elections-  ProxJ>  shall  proceed  to  elect  the  directors  of  the 
by-laws.  company  and  to  enact  all  such  regulations,  rules, 
and  by-laws  as  may  be  necessary  for  the  government  of  the 
corporation  and  the  transaction  of  its  business.  The  persons 
elected  directors  at  this  meeting  shall  serve  for  such  period, 
not  exceeding  one  year,  as  the  stockholders  may  direct,  and  at 
this  meeting  the  stockholders  shall  fix  on  the  day  and  the  place 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.          175 

or  places  where  the  subsequent  elections  for  directors  shall  be 
held,  and  such  elections  shall  thenceforth  be  annually  made; 
but  if  the  day  of  annual  elections  should  pass  without  any  elec- 
tion of  directors,  the  corporation  shall  not  be  thereby  dissolved, 
but  it  shall  l>e  lawful  on  any  other  day  to  hold  and  make  such 
elections,  in  such  manner  as  may  be  prescribed  by  the  by-laws 
of  the  corporation. 

SEC.  10.   Vacancy  in  board,  how  filled.— The  board  of  di- 
rectors may  fill  up  all  vacancies  that  may  occur  in  it  during  the 
period    for  which    their    board    shall    have    been 
elected;  and  in  the  absence  of  the  president,  may 
till  his  place  by  the  election  of  a  president  pro  tempore. 

See  sec.  10  of  charter  of  Nashville,  Chattanooga  &  St.  Louis  Railway, 
ch.  1.  herein,  as  all  corporate  business  of  the  entire  system  is  now  trans- 
acted under  that  charter. 

SEC.  11.  Contracts  and  agreements  binding  without  seal. 

— All  contracts  and  agreements  authenticated  by  the  president 
of  the  board,  shall  be  binding  on  the  company  without  seal,  or 
such  other  mode  of  authentication  may  be  used  as  the  company 
by  their  by-laws  may  adopt. 

See  notes  to  sec.  11  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway  herein. 

SEC.  12.  Liability  Of  directors. — The  board  of  directors  shall 
not  exceed,  in  their  contracts,  the  amount  of  the  capital  of  the 
corporation  and  the  funds  which  the  company  may  contracts  not 
have  borrowed  and  placed  at  the  disposal  of  the  funds 
board;  and,  in  case  they  should  do  so,  the  president  and  direct- 
ors who  may  be  present  at  the  meeting  at  which  such  contracts 
so  exceeding  the  amount  aforesaid,  shall  be  jointly  and  sever- 
ally liable  for  the  excess,  lx>th  to  the  contractor  and  contractors 
and  the  corporation;  l*i'ovid<>d.  That  anyone  may  discharge 
himself  from  such  liability  by  voting  against  such  contract  or 
contracts,  and  causing  such  vote  to  l>e  recorded  on  the  minutes 
of  the  board,  and  giving  notice  thereof  to  the  next  general 
meeting  of  the  stockholders. 

.See  notes  to  sec.  12  of  charter  of  Nashville,  Chattanooga  A-  St.  Louis 
Railway,  herein. 


176  ORIGINAL    CHARTER    OF    M'MINNVILLE    BRANCH 

SEC.  13.  Exclusive  transportation,  rate  of  charge.— The 

said  company  shall  have  the  exclusive  right  of  transportation 
or  conveyance  of  persons,  goods,  merchandise,  and  produce 
over  the  said  railroad  by  them  to  be  constructed;  Provided, 

That  the  charge  of  transportation  or  conveyance 
Rates  of  toll.  r 

shall    not    exceed    thirty-five    cents    per    hundred 

pounds  on  heavy  articles,  and  two  cents  per  cubic  foot  on  arti- 
cles of  measurement,  for  every  hundred  miles,  and  five  cents 
per  mile  for  every  passenger;  And  provided  also,  That  said 
company  may,  when  they  see  fit,  farm  out  their  right  of  trans- 
portation on  said  road,  subject  to  the  rates  above  mentioned. 

See  notes  to  sec.  14  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  14.  Installments,  SUitS  for.— The  board  of  directors 
may  call  for  the  payment  of  twenty-four  and  a  half  dollars  on 
Calls  on  each  share  of  stock,  in  sums  not  exceeding  two 

stock.  dollars  in  every  thirty  days;  Provided,  That  twenty 

days'  notice  be  given  of  such  call,  in  at  least  one  public  news- 
paper of  the  state  in  which  any  of  the  stockholders  may  reside; 
and  a  failure  to  pay,  or  secure  to  be  paid,  according  to  the 
rules  of  the  company,  any  of  the  installments  so  called,  afore- 
said, shall  induce  a  forfeiture  of  the  share  or  shares  on  which 
default  shall  be  so  made,  and  all  payments  thereon,  and  the  same 
shall  vest  in  and  belong  to  the  company,  and  may  be  restored 
to  the  owner  or  owners  by  the  board  of  directors,  if  they  deem 
proper,  on  the  payment  of  all  arrears  on  such  shares  and  legal 
interest  thereon;  or  the  directors  may  waive  the 
forfeiture  after  -  -  days'  default,  and  sue  the 
stockholders  for  the  installments  due,  at  their  discretion. 

SEC.  15.  Stock,  hOW  transferred. — The  stock  of  said  com- 
pany may  be  transferred  in  such  manner  and  form  as  may  be 
directed  by  the  by-laws  of  the  said  corporation. 

See  notes  to  sec.  16  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  chap.  1,  herein. 

SEC.  16.  Capital  increased,  hOW. — The  said  company  may 
at  any  time  increase  its  capital  to  a  sum  sufficient  to  complete 
the  said  road  and  stock  it  with  everything  necessary  to  give  it 


NASHVILLE,    CHATTANOOOA    <fc    ST.    LOUIS    RAILWAY.         177 

full  operation  and  effect,  either  by  opening  books  for  new  stock, 
or  by  selling  such  new  stock,  or  by  borrowing  money  on  the 
credit  of  the  company  and  on  the  mortgage  of  its  charter  and 
works,  and  the  manner  in  which  the  same  shall  be  done  in  either 
case  shall  be  prescril)ed  by  the  stockholders  at  a  general  meet- 
ing; and  any  state,  or  any  citizen,  corporation,  or  company  of 
this  or  any  other  state  or  country,  except  such  companies  or 
corporations  as  the  state  may  own  stock  in,  may  subscribe  for 
and  hold  stock  in  said  company,  with  all  the  rights,  and  subject 
to  all  the  liabilities  of  any  other  stockholder. 

1.  Capital  increased. — Hy  Acts  Tenn.,  1851-52,  ch.  269.  p.  462,  sec.  6, 
the  company  was  authorized  to  increase  its  capital  to  8100,000,  and  to 
again  increase  it  to  8500.000  if  it  saw  fit. 

2.  See  sec.  17  of  charter  of  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way herein  for  method  of  increasing  capital  of  general  system. 

SEC.  17.  Directors'  annual  report ;  may  call  general  meet- 
ings.— The  board  of   directors  shall,   once  in  every  year  at 

least,  make  a  full  report  on  the  state  of  the  com-  Directors  to 
,.,„..  ,.  -   ,,       make  annual 

pany  and  its  anairs,  to  a  general  meeting  of  the  report. 

stockholders,  and  oftener,  if  directed  by  a  by-law,  and  shall 
have  power  to  call  a  general  meeting  of  the  stockholders  when 
the  board  may  deem  it  expedient. 

SEC.  is.  Real  property  may  be  purchased  for  what.— The 

said  company  may  purchase,  have,  and  hold  in  fee,  or  for  a 
term  of  years,  any  lands,  tenements,  and  hereditaments  which 
may  be  necessary  for  said  road,  appurtenances  thereto,  or  for 
the  erection  of  depositories,  storehouses,  houses  for  the  officers, 
servants,  or  agents  of  the  company,  or  for  procuring  timber, 
stones,  or  other  materials  necessary  for  the  construction  of  the 
road  or  its  appurtenances,  or  for  effecting  transjx)rtation  thereon. 

See  notes  to  sec.  21  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  19.  Crossing  and  taking  roads,  water  courses,  and 

turnpikes. — The  said  company  shall  have  the  right,  when  nec- 
essary, to  construct  the  said  road,  or  any  branch  thereof,  across 
or  along  any  public  road  or  water  course;  Provided,  That  the 
said  road  and  the  navigation  of  such  water  course  shall  not  be 
thereby  obstructed;  And  provided  further,  That  such  railroad 
12 


178  ORIGINAL    CHARTER    OF    M'MINNVILLE    BRANCH 

shall  not  be  located  so  near  any  turnpike  road  as  to  injure  or 
prejudice  the  interest  of  the  stockholders  in  such  turnpike  road, 
except  upon  such  terms  as  may  be  agreed  upon  between  the 
president  and  directors  of  the  same  on  behalf  of  the  stock- 
holders. 

See  notes  to  section  22  of  charter  of  Nashville,  Chattanooga  «fe  St. 
Louis  Railway,  chapter  1,  herein. 

SEC.  20.  Purchase  Of  bridges,  roads,  etC.  -The  said  com- 
pany may  purchase,  have,  and  hold  any  bridge  or  turnpike  road 
over  which  it  may  be  necessary  to  carry  the  said  railroad,  and, 
when  such  purchase  is  made,  to  hold  the  said  bridge  or  turn- 
pike road  on  the  same  terms,  and  with  all  rights  which  belong 
to  the  individual,  individuals  or  corporation  from  which  such 
purchase  may  be  made;  Provided,  That  the  said  company  shall 
not  obstruct  any  public  road  without  constructing  another  as 

convenient  as  may  be. 

See  notes  to  sec.  23  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  21.  Condemnation  for  right  of  way.— Where  any 

lands  or  rights  of  way  may  be  required  by  the  said  company, 
for  the  purpose  of  constructing  their  road,  and  for  want  of 
agreement  as  to  the  value  thereof,  or  from  any  other  cause,  the 
same  cannot  be  purchased  from  the  owner  or  owners,  the  same 
may  be  taken  at  a  valuation  to  be  made  by  five  commissioners, 
landltIkSen0r  O1  a  majol'ity  of  them,  to  be  appointed  by  the  cir- 
certahied  as  cl1^  coul't  of  the  county  where  some  part  of  the 
land  or  right  of  way  is  situated,  and  the  said  commissioners, 
before  they  act,  shall  severally  take  an  oath,  before  some  justice 
of  the  peace,  faithfully  and  impartially  to  discharge  the  duty 
assigned  them;  in  making  the  said  valuation  the  commissioners 
shall  take  into  consideration  the  loss  or  damage  which  may  occur 

Commission-  to  the  owner  or  owners  in  consequence  of  the  land 
ers  to  consider  .  ,  .  ,  ,  ,  ,  , 

what.  being  taken,  or  the  right  of  way  surrendered,  and 

also  the  benefit  and  advantage  he,  she,  or  they  may  receive 
from  the  construction  or  establishment  of  the  railroad  or  works, 
and  shall  state  particularly  the  nature  and  amount  of  each;  and 
the  excess  of  loss  and  damage  over  and  above  the  benefit  and 
advantage  shall  form  the  measure  of  the  valuation  of  said  land 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.          179 

or  right  of  way.  The  proceedings  of  the  said  commissioners, 
accompanied  with  a  full  description  of  the  said  land  or  right  of 
way,  shall  be  returned  under  the  hands  and  seals  of  a  majority 
of  the  commissioners  to  the  court  from  which  the  commission 
issued,  there  to  remain  of  record.  In  case  either 
party  to  the  proceeding  shall  appeal  from  the  valua- 
tion to  the  next  session 'of  the  court  granting  the  commission, 
and  give  reasonable  notice  to  the  opposite  party  of  such  appeal, 
the  court  shall  order  a  new  valuation  to  be  made  by  a  jury,  who 
shall  be  charged  therewith  in  the  same  term,  or  as  soon  as  prac- 
ticable, and  their  verdict  shall  be  final  and  conclusive  between  the 
parties,  unless  a  new  trial  shall  be  granted;  and  the  land  or  right 
of  way  so  valued  by  the  commissioners  or  jury  shall  vest  in  the 
said  company  in  fee  simple  so  soon  as  the  valuation  may  be  paid, 
or  when  refused,  may  be  tendered.  Where  there  on  what  con- 
may  be  an  appeal,  as  aforesaid,  from  the  valuation  to  proceed  r 

,  '  ,  '  pending  litlgt- 

of  commissioners  by  either  of  the  parties,  the  same  tion. 

shall  not  prevent  the  works  intended  to  be  constructed  from 
proceeding;  but  where  an  apj>eal  is  by  the  company  requiring 
the  surrender,  they  shall  be  at  liberty  to  proceed  in  their  works 
only  on  condition  of  giving  to  the  opposite  party  a  bond,  with 
good  security,  to  be  approved  of  by  the  clerk  of  the 
court  where  the  valuation  is  returned,  in  a  penalty 
equal  to  double  the  said  valuation,  conditioned  for  the  payment 
of  said  valuation  and  interest  in  case  the  same  be  sustained,  and, 
in  case  it  )>e  reversed,  for  the  payment  of  the  valuation  there- 
after to  l>e  made  by  the  jury  and  confirmed  by  the  court;  Pro- 
vided, That  when  the  land  cannot  be  had  by  gift  or  purchase, 
the  operations  of  the  work  are  not  to  be  hindered  work  not  to  be 
or  delayed  during  the  jxmdency  of  any  proceeding  gal  process, 
to  assess  its  value  as  aforesaid,  nor  shall  any  injunction  or  su- 
persedeas  be  awarded  by  any  judge  or  court  to  delay  the  prog- 
ress of  said  work. 

See  notes  to  sec.  24  of  charter  of  Nashville.  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein,  for  full  discussion  of  this  section.  The  sections 
are  the  same. 

SEC.  22.  In  absence  of  contract,  right  of  way  one  hundred 

feet,  When. — In  the  absence  of  any  contract  with  the  said  com- 


180  ORIGINAL    CHARTER    OF    M^MINNVILLE    BRANCH 

pany,  in  relation  to  any  lands  through  which  the  said  road  may 
Rights  when  Pass?  signed  by  the  owner  thereof,  or  by  his  agent,  or 
presumed.  claimant,  or  any  person  in  possession  thereof,  which 
may  be  confirmed  by  the  owner,  it  shall  be  presumed  that  the 
land  upon  which  the  said  road  may  be  constructed,  together 


Right  of  way  w^n  a  sPace  °f  one  hundred  feet  on  each  side  of  the 
100  ft.,  when.  center  of  the  said  road,  has  been  granted  to  the 
company  by  the  owner  thereof;  and  the  said  company  shall 
have  good  right  and  title  thereto,  and  shall  have,  hold,  and 
enjoy  the  same  as  long  as  the  same  be  used  only  for  the  pur- 
poses of  the  road,  and  no  longer,  unless  the  persons  or  person 
owning  the  said  road  at  the  time  that  part  of  the  road  which 
may  be  on  the  land  was  finished,  or  those  claiming  under  him, 
her,  or  them,  shall  apply  for  an  assessment  for  the  value  of  the 
said  lands,  as  hereinbefore  directed,  within  five  years  next  after 
that  part  of  said  road  was  finished;  and  in  case  the  said  owner 
or  owners,  or  those  claiming  under  him,  her,  or  them,  shall 
not  apply  for  such  assessment  within  five  years  next  after  the 
said  part  was  finished,  he,  she,  or  they  shall  be  for- 
barreedCi°nVtwo  ever  Barred  from  recovering  the  said  land  or  hav- 
removafo6/  ^ng  anJ  assessment  or  compensation  therefor;  Pro- 
disability.  vided,  Nothing  herein  contained  shall  affect  the 
right  of  femes  covert,  or  infants  until  two  years  after  the  re- 

moval of  their  respective  disabilities. 

See  notes  to  sec.  25  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein,  for  full  discussion  of  this  section.  The  sections 
are  the  same. 

SEC.  23.  Forfeiture  and  penalty  for  intrusion.—  if  any  per- 

son shall  intrude  upon  the  said  railroad,  or  any  part  thereof, 

by  any  manner  of  use  thereof,  or  of  the  rights  and 

privileges  connected  therewith,  without  the  permis- 

sion or  contrary  to  the  will  of  said  company,  he,  she,  or  they 

shall  forthwith  forfeit  to  the  said  company  all  the  vehicles  that 

may  be  so  intruded  on  said  road,  and  the  same  may 
Penalty. 

be  recovered  by  suit  at  law;  and  the  person  or  per- 

sons so  intruding  may  be  indicted  also  for  misdemeanor,  and, 
upon  conviction,  fined  and  imprisoned  by  any  court  of  compe- 

tent jurisdiction. 

See  3  Hum.  (Tenn.),  481-483,  for  misdemeanor. 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          181 

SEC.  24.  Obstructing  or  damaging  road  or  bridge,  punish- 
ment.— If  any  person  shall  willfully  and  maliciously  destroy 
or  in  any  manner  hurt,  damage,  or  destroy  the  said  railroad, 
or  any  bridge,  or  any  vehicle  used  for  or  in  trans|x>rtation 

thereon,  such  iHjrson  or  persons  so  offending  shall 

.,.,,.  ,  .        Punishment, 

be  liable  to  be  indicted  therefor,  and,  on  convic- 
tion, shall  be  imprisoned  not  more  than  six  months  nor  less 
than  one  month,  and  pay  a  tine  not  less  than  twenty  dollars, 
and  shall  be  further  liable  to  pay  all  the  expenses  of  repairing 
the  same. 

See  notes  to  section  27  of  charter  of  Nashville,  Chattanooga  &  St. 
Louis  Railway,  chapter  1,  herein. 

SEC.  25.  Obstruction  a  public  nuisance.— Every  obstruction 
to  the  safe  and  free  passage  of  vehicles  on  the  said  road  shall 
be  deemed  a  public  nuisance,  and  may  be  abated  as  such  by  any 
officer,  agent,  or  servant  of  the  company,  and  the  person  caus- 
ing such  obstruction  may  be  indicted  and  punished  for  erecting 
a  public  nuisance. 

The  word  "obstruction,"  as  used  by  railroad  men,  is  not  such  a  term 
of  art  as  requires  explanation  bv  an  expert.  6  Heis.  (Tenn.),  347.  See, 
also,  3  Head,  522;  1  Hax.,  55. 

SEC.  26.   Storage  Charges  allowed,  When.— The  said  com- 
pany shall    have   the    right   to   take,  at   the  storehouse    they 
may  establish  or  annex  to  their  railroad,  all  goods,   R  Je    f 
wares,  merchandise,  and  produce  intended  for  trans-  I*"1**10"- 
]K>rtation,  prescribe  the  rules  of  priority,  charge  and  receive 
such  just  and  reasonable  compensation  for  storage  as  they  may, 
by  rules,  establish  (which  they  shall  cause  to  be  published),  or 
as  may  be  fixed  by  agreement  with  the  owner,  which  may  be 
distinct  from  the  rates  of  transportation;  Provided,   That  the 
said  company  shall  not  charge  or  receive   storage  on  goods, 
wares,  merchandise,   and  produce  which  may  be  delivered  to 
them  at  their  regular  de}M>sitories  for    immediate  Nottoehlre 
transportation,  and  which  the  company  may  have  when- 
the  power  of  transporting  immediately. 

See  notes  to  sec.  21)  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  27.   Dividends  paid,  When.— The  profits  of  the  company, 


182  ORIGINAL   CHARTER   OF    M'MINNVILLE    BRANCH 

or  so  much  thereof  as  the  board  of  directors  may  deem  advis- 
able, shall,  when  the  affairs  of  the  company  will  permit,  be 
semiannually  divided  among  the  stockholders  in  proportion  to 
the  stock  each  may  hold. 

See  notes  to  sec.  30  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein,  as  all  dividends  are  now  paid  under  that  charter. 

SEC.  28.  Banking  prohibited;  may  insure.— The  said  com- 
pany is  hereby  expressly  prohibited  from  carrying  on  any  bank- 
ing operation,  but  may  effect  insurance  on  lives  and  property 
transported  on  the  road. 

SEC.  29.  Crossings  Of  roads  and  lands.— Whenever  in  the 
construction  of  said  road  it  shall  be  necessary  to  cross  or  in- 
tersect any  established  road  or  way,  it  shall  be  the  duty  of  the 
company  to  construct  said  road  across  such  established  road  or 
way,  so  as  not  to  impede  the  passage  or  transportation  of  per- 
sons or  property  along  the  same,  or  where  it  shall  be  necessary 
to  pass  through  the  land  of  any  individual,  it  shall  be  their 
duty  to  provide  for  such  individual  a  proper  wagon  way  or 
ways  across  said  road  from  one  part  of  his  land  to  another. 

See  notes  to  sec.  32  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  30.  Additional  powers. — The  said  company  shall  have 
and  possess  such  additional  powers  as  may  be  convenient  for 
the  due  and  successful  execution  of  the  powers  granted  in  this 
charter  and  for  the  successful  construction  and  management  of 
the  work. 

See  notes  to  section  33  of  charter  of  Nashville,  Chattanooga  &  St. 
Louis  Railway,  chapter  1,  herein. 

SEC.  31.  Charter,  how  amended. — This  charter  shall  be 
amendable  from  time  to  time  by  the  legislature  whenever  the 
president  and  directors  shall  unanimously  petition  for  amend- 
ments, specifying  in  the  petition  the  nature  of  such  amend- 
ments. 

See  notes  to  section  34  of  charter  of  Nashville,  Chattanooga  &  St. 
Louis  Railway,  chapter  1,  herein,  for  full  discussion  of  this  section. 

SEC.  32.  Directors  trustees  in  case  of  dissolution.— If,  by 

decree  or  otherwise,  the  said  corporation  shall  be  dissolved,  the 
president  and  directors  of  said  company  are  created  trustees, 


NASHVILLE,    CHATTANOOGA    &    ST.     LOUIS    RAILWAY.          183 

with  such  jK)\vers  only  as  may  be  necessary  to  collect  the  debts 
due  the  company,  preserve  the  property,  pay  the  debts,  and 
distribute  the  proj>erty  and  effects  of  the  company  to  those  who 
may  l>e  entitled  thereto  under  the  charter. 

Sci-  notes  to  sec.  37  of  charter  of  Nashville,  Chattanooga  «fe  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  33.  Exemption  from  taxation.— The  capital  stock  of 

the  company  shall  l>e  exempt  from  taxation  until  the  dividends 
amount  to  six  per  cent.,  and  the  road,  with  all  its  fixtures  and 
appurtenances,  shall  be  exempt  from  taxation  ior  the  period  of 
twenty  years  from  the  completion  of  the  road,  and  no  longer. 

See  notes  to  sec.  38  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  34.  Road  to  be  commenced  and  completed,  when.— The 

railroad  authorized  by  this  act  shall  be  commenced  within  three 
years  after  the  passage  of  this  act,  and  shall  be  finished  within 
six  years  thereafter;  otherwise,  the  charter  hereby  granted 
shall  be  void.  (Acts  Tenn.,  1849-50,  ch.  259,  p.  497;  passed 
February  4,  1850.) 

By  Acts  1851-2,  ch.  269,  p.  462,  sec.  8,  the  company  was  granted  ten 
years  to  complete  the  road  and  five  years  to  begin  the  construction 
thereof. 


CHAPTER  X. 

DECREES  AND  ACTS  RELATING  TO  AND  AMENDING  CHARTER 
OF  McMINNVILLE  &  MANCHESTER  RAILROAD  COMPANY. 

DECREE  VESTING  TITLE  TO   McMINNVILLE   & 

MANCHESTER  RAILROAD  IN  MEMPHIS  & 

CHARLESTON  RAILROAD  COMPANY. 

STATE  OF  TENNESSEE  v.  EDOEFIELD  &  KENTUCKY  RAILROAD 

COMPANY  ET  AL. 

This  cause  being  again  heard  on  this  tenth  of  July,  1875, 
before  the  Hon.  Thos.  H.  Malone,  special  chancellor,  by  reason 
of  the  incompetency  of  the  chancellor,  upon  the  previous  pro- 
ceedings and  the  equities  reserved  by  the  decree  entered  on  a 


184     DECREES,    ETC.,    RELATING    TO    M'MINNVILLE    BRANCH 

former  day  of  the  present  term,  touching  the  vesting  of  the 
title  of  the  McMinnville  &  Manchester  Railroad,  its  property 
and  franchises,  by  which  such  vesting  was  suspended  until  the 
Memphis  &  Charleston  Railroad  Company  shall  direct  to  whom 
the  title  is  to  be  made,  and  it  now  appearing  from  a  letter  of 
W.  Y.  C.  Humes,  the  solicitor  of  the  Memphis  &  Charleston 
Railroad  Company  in  this  cause,  to  one  of  the  solicitors  of  the 
state,  under  date  of  July  8,  1875,  and  filed  with  the  papers, 
that  the  Memphis  &  Charleston  Railroad  Company  desires  and 
now  directs  that  the  title  be  made  to  it: 

It  is  therefore  ordered,  adjudged,  and  decreed  that  the  title 
to  the  said  McMinnville  &  Manchester  Railroad  Company,  its 
property  and  franchises,  as  sold  by  the  state  commissioners,  be, 
and  the  same  is  hereby,  vested  in  the  Memphis  &  Charleston 
Railroad  Company,  its  successors  and  assigns.  And  the  clerk 
and  master  is  authorized  to  give  to  the  purchasers,  for  registra- 
tion, certified  copies  of  this  and  the  former  decree  at  this  term, 
upon  demand  and  the  payment  of  the  proper  charges. 

THOS.   H.   MALONE,  Special  Chancellor. 

Entered  July  10,  1875,  book  No.  3,  p.  58,  chancery  court, 
Nashville,  Tenn. 

The  McMinnville  &  Manchester  Railroad  was  first  bought  by  the  com- 
pany itself  under  the  proceedings  instituted  by  the  state  to  sell  the  road, 
as  explained  in  preceding  chapter.  As  the  company  failed  to  comply  with 
the  terms  of  sale,  however,  the  road  was  again  put  up  and  sold,  when  the 
Memphis  &  Charleston  Railroad  Company  bid  it  in,  and  on  June  28,  1875, 
a  decree  was  entered  confirming  the  sale  of  the  road,  franchises,  etc.,  to 
said  company.  See  minute  book  No.  2,  p.  43S,  of  the  Chancery  Court  at 
Nashville,  Tenn. 

Said  decree  was  registered  in  Warren  county,  in  book  7,  p.  72,  73;  and 
in  Coffee  county,  in  book  vol.  2  (trust  deeds,  etc.).  pp.  4,  5. 

It  will  be  noticed  from  the  decree,  however,  which  is  also  inserted 
herein  in  ch.  8,  that  the  Memphis  &  Charleston  Railroad  Company  did 
not  have  the  title  vested  in  it  in  that  decree,  but  reserved  the  matter. 
The  above  decree,  therefore,  was  necessary. 

Charter  amended ;  rights,  powers,  and  privileges  of  Nashville 
&  Chattanooga  Railroad  Company  conferred  on  McMinn- 
ville &  Manchester  Railroad  Company ;  capital  increased ; 
scale  of  voting  provided ;  commissioners ;  route  located ; 
may  extend  to  Sparta,  how. 

SECTION  5.  Be  it  further  enacted,  That  the  charter  of  the 
McMinnville  &  Manchester  Railroad  Company  be  so  amended 


NASHVILLE,    CHATTANOOGA    A    8T.     LOUIS    RAILWAY.          185 

as  that  said  company  shall  have  and  enjoy  all  the  rights,  pow- 
ers, and  privileges  and  l>e  subject  to  all  the  liabilities  and  re- 
strictions prescril>ed  in  the  charter  of  the  Nashville  &  Chatta- 
nooga Railroad  Company  and  in  the  various  amendments 
thereto,  except  as  herein  further  provided. 

SEC.  6.  Be  it  enacted,  That  the  capital  stock  of  said  com- 
pany shall  be  one  hundred  thousand  dollars,  to  be  divided  into 
shares  of  twenty-five  dollars  each,  and  the  company  Cap|tajstock 
shall  have  power  to  increase  the  capital  stock  to  lncre»sed- 
five  hundred  thousand  dollars;  and  when  one  thousand  shares 
of  the  capital  stock  are  subscribed  for,  said  company  may  or- 
gani/e  by  the  election  of  a  board  of  directors,  who  shall  elect 
a  president  from  their  number,  as  prescribed  in  the  charter  of 
the  Nashville  &  Chattanooga  Railroad  Company,  and  at  all 
meetings  of  the  stockholders,  when  a  vote  is  to  be  taken,  stock- 
holders may  vote  in  person  or  by  proxy,  and,  in  the  election 
of  directors  and  in  voting  on  all  questions  which  coine  before  a 
meeting  of  stockholders,  or  which  may  be  submitted  to  a  de- 
cision of  the  stockholders  in  any  other  manner,  the  vote  shall 
be  taken  according  to  the  following  scale:  The  owner  of  one  or 
two  shares  shall  be  entitled  to  one  vote;  the  owner  g^,^ 
of  not  less  than  three  nor  more  than  four  shares  votln*- 
shall  be  entitled  to  two  votes;  the  owner  of  not  less  than  live 
nor  more  than  six  shares  shall  be  entitled  to  three  votes;  the 
owner  of  not  less  than  seven  nor  more  than  eight  shares,  to 
four  votes;  the  owner  of  not  less  than  nine  nor  more  than 
eleven  shares,  to  five  votes;  the  owner  of  not  less  than  twelve 
nor  more  than  fifteen  shares,  to  six  votes;  the  owner  of  not 
less  than  sixteen  shares  nor  more  than  twenty,  to  seven  votes; 
the  owner  of  not  less  than  twenty-one  shares  nor  more  than 
twenty-six,  to  eight  votes;  the  owner  of  not  less  than  twenty- 
seven  nor  more  than  thirty-three  shares,  to  nine  votes;  the 
owner  of  not  less  than  thirty-four  nor  more  than  forty  shares, 
to  ten  votes;  and  the  owner  of  every  ten  shares  alx>ve  forty 
shall  be  entitled  therefor  to  one  vote;  I'rov'uled,  That  no  indi- 
vidual, corporation,  or  company  shall  be  entitled  to  more  than 
five  hundred  votes. 


186      DECREES,    ETC.,     RELATING    TO    M'MINNVILLE    BRANCH 

SEC.  7.  Be  it  enacted,  That  S.  D.  Rowan,  L.  D.  Mercer,  R. 
B.  Cain,  Wm.  Smart,  Dr.  Davis,  Win.  H.  Colson,  M.  Hoover, 
(/.  Colson,  Lawson  Wileman,  Joseph  M.  Howe,  W.  P.  Hick- 
erson,  -  -  Bashaw,  R.  B.  Anderson,  John  Charles,  Alexan- 
der E.  Patton,  Herndon  Greene,  Peter  S.  Decherd,  Thomas  C. 
Smart,  H.  H.  Harrison,  M.  Hill,  H.  L.  W.  Hill,  and  Robert 
Commission-  Webb  be,  and  they  are  hereby,  constituted  a  board 
ers<  of  commissioners,  any  seven  of  whom  may  act,  to 

manage  all  the  affairs  of  said  company  until  it  shall  be  organ- 
ized by  the  election  of  a  board  of  directors,  as  aforesaid;  to 
procure  the  subscription  of  stock,  by  the  appointment  of  an 
agent  or  agents  for  that  purpose,  or  in  such  manner  as  they 
may  deem  best;  to  provide  for  experimental  surveys  of  routes 
for  said  railroad,  and  for  the  payment  for  making  said  surveys 
and  for  procuring  said  subscriptions,  out  of  such  calls  on  the 
stock  subscribed  for  as  they  may  deem  advisable,  out  of  the 
funds  hereafter  provided  for,  but  they  shall  not  be  compelled 
to  require  any  part  of  the  stock  subscribed  for  to  be  paid  in 
cash,  at  the  time  it  is  subscribed  for;  and  at  all  meetings  of  said 
commissioners  they  may  vote  in  person  or  by  proxy  in  relation 
to  the  affairs  of  the  company  before  its  organization  as  afore- 
said, and  they  shall  require  each  subscriber  to  execute  his  note 
to  the  company  for  one  dollar  for  each  share  of  stock  subscribed 
for  by  him,  and  it  shall  be  lawful  for  the  same  to  be  sued  for 
and  recovered  of  such  subscriber,  in  the  name  of  the  company, 
whether  organized  or  not,  to  be  used  when  paid  in  defraying 
the  expenses  incurred  by  the  commissioners  in  the  manner  afore- 
said. 

SEC.  8.  Be  it  further  enacted,  That  said  company  shall  have 
ten  years  to  complete  their  said  railroad,  and  shall  have  five 
Time  to  begin  vears  to  begin  the  construction  of  said  road;  and 
and  complete,  whenever  five  miles  of  the  road  shall  have  been 
completed,  said  company  may  carry  on  its  regular  business  on 
the  same. 

SEC.  9.  Be  it  enacted,  That  anything  in  the  charter  of  the 
McMinnville  &  Manchester  Railroad  Company,  inconsistent 
wit  the  provisions  of  this  act,  is  hereby  repealed. 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          187 

0.  10.  Be  it  enacted,  That  in  the  locution  of  the  McMinn- 
ville  &  Manchester  Railroad,  it  shall  be  located  on  the  nearest 
and  most  practical  route  to  the  Nashville  &  Chatta- 
nooga Railroad  from  McMinnville,  to  be  judged  of 
by  the  president  and  directors;  Provided,  That  the  thirteenth 
section  of  the  act  incorporating  the  Nashville  &  Chattanooga 
Railroad  Company,  shall  not  be  a  part  of  the  charter  of  the 
said  Southwestern  Railroad  Company,  nor  McMinnville  & 
Manchester  Railroad  Company;  And  provided,  That  nothing 
in  this  act  shall  be  so  construed  as  to  authorize  the  governor  to 
indorse  the  bonds  of  said  companies,  nor  shall  the  name  of  the 
road  hereby  incorporated  control  its  location,  but  the  same 
shall  l>e  left  to  the  discretion  of  the  president  and  board  of  di- 
rectors. 

SKC.  11.   Be  it  enacted,  That  the  charter  of  said  road  shall 
be  continued  from  McMinnville  to  Sparta,  on  condition   that 
the  people  of  White  county  make  the  same  to  Me-  May  txtend  to 
Minnville.     (ActsTenn.,  1851-2,  ch.  269,  p.  462;  spam.  how. 
passed  January  31,  1852.) 

Charter  amended,  any  stockholder  may  be  director. 

SEC.  58.  Be  it  further  enacted,  That  from  and  after  the  pas- 
sage of  this  act,  any  stockholder  of  the  McMinnville  &  Man- 
chester Railroad  Company  shall  be  eligible  to  election  as  di- 
rector of  said  company,  without  regard  to  the  number  of 
shares  of  stock  owned  by  him  in  said  company.  (Acts  Tenn., 
1855-6,  ch.  181,  p.  281;  passed  February  27,  1856.) 

Town  of  McMinnville  authorized  to  subscribe  for  stock  in 
McMinnville  &  Manchester  Railroad  Company,  how. 

SEC.  12.  Be  it  enacted,  That  the  mayor  and  aldermen  of  the 
town  of  McMinnville,  in  the  county  of  Warren,  in  this  state, 
shall  have  the  same  power,  and  in  the  same  manner,  to  subscribe 
for  stock  in  the  McMinnville  &  Manchester  Railroad  Company, 
as  the  mayor  and  aldermen  of  the  town  of  Franklin  have  to  sub- 
scribe for  stock  in  the  Tennessee  &  Alabama  Railroad  Company 
or  in  any  railroad  company  running  near  said  town.  (Acts 
Tenn.,  1855-6,  ch.  204,  p.  384;  passed  February  26,  1855.) 


188      DECREES,    ETC.,     RELATING    TO    M'.MINNVILLE    BRANCH 

Purchasers  of  McMinnville  &  Manchester  Railroad  at  state 
sale  authorized  to  be  credited  with  any  amount  recov- 
ered by  the  United  States,  in  suit  against  it,  for  iron, 
rails,  etc.,  furnished. 

SECTION  1.  Be  it  enacted,  by  the  General  Assembly  of  the 
State  of  Tennessee,  That,  in  the  event  the  United  States  shall 
recover  any  amount  in  the  suit  for  the  sum  of  sixty-seven  thou- 
sand dollars,  which  the  said  United  States  has  brought  in  the 
federal  court,  at  Nashville,  against  the  McMinnville  &  Man- 
chester Railroad  Company  for  the  value  of  iron,  rails,  material, 
and  rolling  stock  alleged  to  have  been  furnished  said  company, 
and  to  secure  which  a  lien  was  retained,  with  the  right  reserved 
to  the  United  States  to  put  a  receiver  in  charge  of  said  railroad, 
that  the  commissioners  appointed  to  sell  the  delinquent  rail- 
roads in  the  State  of  Tennessee  be  directed  and  authorized  to 
credit  the  said  company  who  purchased  said  road,  with  the 
amount  of  such  recovery;  Provided,  That  said  McMinnville  & 
Manchester  Railroad  Company  shall  not  have  the  benefit  of  this 
act  unless  it,  in  good  faith  and  to  the  satisfaction  of  said  com- 
missioners, makes  all  proper  and  necessary  defenses  to  said 
suit  brought  against  it  by  the  United  States. 

SEC.  2.  Be  it  further  enacted,  That  this  act  take  effect  from 
and  after  its  passage,/the  public  welfare  requiring  it.  (Acts 
Tenn.,  1872,  ex.  ses.,  p.  39,  ch.  16;  passed  March  30,  1872.) 

Claims  between  State  of  Tennessee  and  United  States  in  re- 
gard to  McMinnville  &  Manchester  Railroad  authorized 
to  be  settled,  how. 

WHEREAS,  There  are  large  and  unsettled  claims  between  the 
State  of  Tennessee  and  the  United  States  government;  and, 

WHEREAS,  It  is  important  that  said  claims  should  be  ad- 
justed; therefore, 

SECTION  1.  Be  it  enacted  by  tlie  General  Assembly  of  the 
State  of  Tennessee,  That  the  governor  of  the  State  of  Tennessee 
be,  and  he  is  hereby,  fully  authorized  and  empowered  to  settle 
with  the  government  of  the  United  States  all  the  unadjusted 
claims  between  the  Memphis,  Clarksville  &  Louisville  Railroad 
and  said  government;  also  all  claims  the  State  of  Tennessee  and 


NASHVILLE,    CHATTANOOGA    A   ST.    LOUIS    RAILWAY.         189 

the  McMinnville  &  Manchester  Railroad  Company  hold  against 
the  government  of  the  United  States,  and  all  claims  the  United 
States  holds  against  said  McMinnville  &  Manchester  Railroad 
Company  for  damages  done  the  McMinnville  &  Manchester 
Railroad,  or  damages  done  said  company  by  the  United  States, 
or  for  iron,  engines,  rails,  and  other  materials  furnished  said 
company;  and,  also,  all  other  claims  the  State  of  Tennessee 
holds  against  the  United  States  government  in  connection  with 
Tennessee  railroad  interests. 

SBC.  2 

SEC.  3.  Be  it  further  enacted,  That  this  act  take  effect  from 
and  after  its  passage,  the  public  welfare  requiring  it.  (Acts 
Tenn.,  1872,  ex.  ses.,  p.  35,  ch.  13;  passed  March  30,  1872.) 

Comptroller  authorized  to  settle  with  B.  J.  Hill,  president  and 
receiver  of  the  McMinnville  &  Manchester  Railroad. 

SECTION  1.  Be  it  enacted  by  tfte  General  Assembly  of  the 
State  of  Tennessee,  That  the  comptroller  be  authorized  and  di- 
rected to  make  full  settlement  with  B.  J.  Hill,  as  receiver  and 
late  president  of  the  McMinnville  &  Manchester  Railroad. 

SEC.  2.  Be  it  further  enacted,  That  when  said  settlement 
shall  have  been  made  on  or  upon  B.  J.  Hill's  sworn  statement, 
if  there  should  be  anything  due  said  receiver  for  balance  of 
salary,  or  for  money  exj>ended  out  of  his  own  private  means 
as  such  receiver  for  said  road,  that  the  comptroller  issue  his 
warrant  upon  the  treasurer  in  favor  of  B.  J.  Hill,  said  receiver, 
for  whatever  amount  found  to  be  due  him  on  final  settlement. 

SEC.  3.  Be  it  further  enacted,  That  this  act  take  effect  from 
and  after  its  passage,  the  public  welfare  requiring  it.  (Acts 
Tenn.,  1875,  ch.  52,  p.  49;  passed  March  11,  1875.) 

State  aid  to  McMinnville  &  Manchester  Railroad.— Many 

acts  of  the  legislature  were  passed  authorizing  state  aid  to  be 
granted  to  the  McMinnville  &  Manchester  Railroad  for  the  pur- 
pose of  building  and  equipping  its  road.  The  state  aid  was 
given  by  having  the  governor  to  indorse  the  bonds  of  the  road 
on  l>ehalf  of  the  state.  These  acts  are  quite  lengthy,  and  are 
so  seldom  required  that  for  the  puri>ose  of  space  and  economy 


190     DECREES,    ETC.,    RELATING    TO    M\MINNVILLE    BRANCH 

it  is  not  deemed  advisable  to  insert  them  in  full  in  this  compila- 
tion, but  simply  to  refer  to  the  act  and  page  where  they  can 
be  found. 

Below  will  be  found  all  acts  relating  to  this  subject,  set  out 
in  the  order  of  their  passage: 

Acts  1851-2,  ch.  151,  governor  authorized  to  issue  coupon 
bonds,  for  amount  not  exceeding  $8,000  per  mile,  on  certain 
conditions.  (For  conditions,  see  act.) 

Acts  1853-4,  ch.  131,  sec.  1,  state  aid  to  the  extent  of 
$10,000  a  mile. 

Acts  1855-6,  ch.  120,  p.  143,  sec.  13,  governor  authorized 
to  issue  bonds  to  amount  of  $30,000,  in  constructing  bridge 
across  Barren  Fork  of  Collins  river,  Hickory  creek,  and  Duck 
river. 

Acts  1857-8,  ch.  118,  p.  301,  governor  authorized  to  issue 
bonds  to. 

Acts  1865-6,  ch.  14,  p.  33,  governor  authorized  to  issue 
bonds  to  the  Manchester  &  McMinnville  Railroad  to  the  amount 
of  $346,000. 

Acts  1865-6,  ch.  49,  p.  75,  governor  authorized  to  issue 
bonds  to  amount  of  $54,000. 

Resolution  authorizing  postponement  of  sale  of  McMinnville 
&  Manchester  Railroad. 

WHEREAS,  The  purchasers  of  the  McMinnville  &  Manchester 
railroad  have  made  one  payment  of  seventy-five  thousand  dol- 
lars, and  are  now  in  default  one  payment,  for  which  the  road 
is  now  advertised  for  resale  by  the  state  commissioners  for  the 
sale  of  delinquent  railroads;  and, 

WHEREAS,  Since  the  sale  and  purchase  aforesaid,  the  real 
purchasers,  the  Memphis  &  Charleston  Railroad  Company,  in 
the  lease  of  its  main  trunk,  impaired,  to  some  extent,  its  power 
to  raise  money;  but, 

WHEREAS,  The  purchasers  have  come  forward  and  shown 
not  onl}7  an  honest  purpose  to  comply  with  the  contract,  but  a 
determination  to  do  it  if  some  indulgence  is  shown;  therefore, 

Resolved  by  the  Senate  and  House  of  Representatives,  That 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         191 

the  state  commissioners  for  the  sale  of  delinquent  railroads  be, 
and  they  are  hereby,  instructed  to  postpone  the  resale  of  the 
McMinnville  &  Manchester  Railroad  until  after  the  first  of  May 
of  the  present  year,  provided  the  purchasers,  and  such  of  the 
sureties  as  will  l>e  satisfactory  to  the  commissioners,  shall  agree, 
in  writing,  to  the  same,  and  that  the  postponement  shall  in  no 
way  affect  the  rights  of  the  state  against  them  on  their  bond 
for  the  full  amount  which  may  be  due  thereon,  nor  the  right 
of  the  state  to  enforce  its  lien  upon  the  property.  (AclsTenn., 
1873,  p.  202;  approved  January  28,  1873.) 


192  ABSTRACT   OF   TITLE   TO    M'lIINHVILLE    BRANCH 


CHAPTER  XL 

THE  SOUTHWESTERN  RAILROAD  COMPANY. 
.     (Now  FORMS  PART  OF  MCMINNVILLE  BRANCH.) 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— Under  the  general  improvement  laws  of  1851-52,  and 
amendments  thereto,  the  State  of  Tennessee,  through  its  gov- 
ernor, indorsed  the  bonds  of  the  various  railroads  in  the  state, 
to  aid  in  their  construction,  retaining  a  lien  on  the  respective 
roads  so  assisted  as  security  therefor;  among  the  number  was 
the  Southwestern  Railroad  Company.  Default  having  been 
made  in  the  payment  of  interest  on  the  bonds  issued  for  its 
benefit,  a  bill  was  filed  in  the  chancery  court  at  Nashville,  Tenn., 
in  the  name  of  the  state  against  the  Edgetield  &  Kentucky  Rail- 
road Company  et  als.,  to  which  the  said  Southwestern  Railroad 
Company  was  also  made  a  defendant,  seeking  to  enforce  the 
state's  lien  or  statutory  mortgage.  This  bill  was  filed,  as  ex- 
plained in  other  chapters,  in  pursuance  of  an  act  of  the  legisla- 
ture of  1870-71,  ch.  23,  p.  25,  authorizing  the  sale  of  all  de- 
linquent roads,  the  tenth  section  of  which  provided  "that  upon 
sale  of  any  of  the  franchises  of  either  of  the  railroad  companies 
by  the  commissioners  under  the  provisions  of  this  act,  all  the 
rights,  privileges,  and  immunities  appertaining  to  the  franchise 
so  sold,  under  its  act  of  incorporation,  and  the  amendments 
thereto,  and  the  general  improvement  laws  of  the  state  and  acts 
amendatory  thereof,  shall  be  transferred  to  and  vest  in  such 
purchaser,  and  the  purchaser  shall  hold  said  franchise  subject 
to  all  liens  and  liabilities  in  favor  of  the  state,  as  now  provided 
by  law  against  the  railroad  companies. 

On  June  8,  1871,  a  pro  confesso  was  taken  against  the  said 
Southwestern  Railroad  Company,  as  per  decree  entered  in  minute 
book  T,  p.  406,  and  on  July  6,  following,  the  amount  of  in- 


NASHVILLE,    CHATTANOOGA    4    ST.    LOUIS    RAILWAY.         193 

debtedness  of  said  road  to  the  state  was  adjudicated  at  $553,790 
and  the  road  ordered  sold.  See  minute  hook  T,  p.  372. 

At  the  sale,  the  Southwestern  Railroad  Company  itself  be- 
came purchaser  of  its  own  road,  franchises,  etc.  See  minute 
book  T,  p.  507. 

Subsequently  it  sold  them  to  the  Nashville,  Chattanooga  & 
St.  Louis  Railway.  At  the  date  of  the  latter  sale,  however, 
only  a  small  part  of  the  road  had  been  constructed,  but  the 
Nashville,  Chattanooga  &  St.  Louis  Railway,  under  and  by 
virtue  of  the  rights,  franchises,  etc.,  it  had  acquired  by  the 
purchase  of  the  road,  together  with  the  rights  and  franchises 
it  had  acquired  by  its  purchase  of  the  McMinnville  &  Manches- 
ter Railroad,  as  heretofore  explained  in  chapter  9,  completed 
the  road  to  Sparta.  The  road  from  Sparta  to  Bon  Air  was 
built  subsequently,  under  the  charter  of  the  Bon  Air  Railroad 
Company. 

1.  For  charter  of  Bon  Air   Railroad  Company,  and  how  it  was  ac- 
quired, see  index. 

2.  The  Nashville,  Chattanooga  &  St.  Louis  Railway  could  have  ex- 
tended the  road  from   McMinnville  to  Sparta  under  the   charter  and 
amendments  of  the  McMinnville  &  Manchester  Railroad  Company,  as  by 
Acts  Tenn.,  1851-2,  ch.  269,  p.  462,  sec.  11.  the  charter  of  said  road  was 
amended  so  as  to  permit  it  to  be  done,  under  the  condition  therein  set 
out,  which  was  subsequently  performed. 

3.  The  purchase  of  this   road   and   its   franchises  by  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  was  legal.    Under  the  Acts  of  1871,  ch. 
69.  which  superseded  the  Acts  of  1871.  ch.  22,  it  was  provided  that  ''every 
railroad  corporation  in  this  state,  whether  created  under  a  general  or 
special  law,  shall  have  power  to  acquire  by  purchase,  or  other  lawful 
contract,  and  have,  hold,  use,  and  operate  any  railroad,  with  its  fran- 
chises, belonging  to  any  other  railroad  company.'' 

Width  Of  right  Of  way.  —The  Nashville,  Chattanooga  &  St. 
Louis  Railway  having  become  the  lawful  purchaser  of  the 
road,  right  of  way,  easements,  franchises,  etc.,  of  this  company, 
together  with  those  of  the  McMinnville  <&  Manchester  Railroad 
Company,  it  is  now  entitled  to  all  the  rights,  franchises,  etc., 
contained  in  their  charters.  Section  1  of  the  charter  of  the 
Southwestern  Railroad  Company  gave  it  all  the  rights,  powers, 
and  privileges  contained  in  the  charter  of  the  Nashville  & 
Chattanooga  Railroad  Company.  Sections  23  and  24  of  the 
latter  charter  gave  a  right  of  way  of  one  hundred  feet  on  each 
side  of  the  center  of  the  road  in  the  absence  of  any  written 

13 


194    ORIGINAL    CHARTER    OF    SOUTHWESTERN    RAILROAD    CO. 

contract  with  the  original  landowners  to  the  contrary.  5  Pick., 
293.  Sections  21  and  22  of  the  charter  of  the  McMinnville 
&  Manchester  Railroad  Company  gave  the  same  number  of 
feet,  and  by  Acts  1851-2,  ch.  269,  p.  462,  sec.  11,  the  said 
charter  was  extended  over  the  proposed  line  from  McMinnville 
to  Sparta.  This  being  so,  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  would  now  be  entitled,  over  that  line,  to  the 
two  hundred  feet  width  of  right  of  way,  whether  the  road 
was  extended  under  one  charter  or  the  other. 

1.  Independent  of  the  franchises  contained  in  the  charter  of  this  com- 
pany  and   the    McMinnville    &    Manchester    Railroad    Company,    the 
Nashville,  Chattanooga   &  St.   Louis  Railway  would  doubtless  now  be 
entitled,  over  the  line  of  this  road,  to  one  hundred  feet  on  each  side  of 
the  center  of  the  road,  for  by  Acts  Tenn.,  1849-50,  ch.  266.  sec.  3,  it  was 
provided  that  all  branches  of  the  Nashville  &   Chattanooga   Railroad 
Company,  as  may  be  made,  shall  have  all  the  rights  and  privileges,  and 
shall  be  placed  in  all  respects  on  the  same  footing,  with  the  said  Nash- 
ville &  Chattanooga  Railroad  Company. 

2.  The  road  from  Sparta  to  Bon  Air  was  built  under  the  charter  of 
the  Bon  Air  Railroad  Company.     For  charter,  how  road  acquired,  and 
width  of  right  of  way  of  that  branch,  see  index. 

3.  For  a  general  discussion  of  this  and   kindred   subjects,  together 
with  the  right  and  method  of  taking  more  than  two  hundred  feet  when 
necessary  for   railroad   purposes,  see  Eminent  Domain,   Right  of    Wnu, 
herein.     Refer  to  index. 

ORIGINAL  CHARTER  OF  THE  SOUTHWESTERN 
RAILROAD  COMPANY. 

(Acts   Tenn.,   1851-52,  ch.   269,  p.  462.) 

SECTION  i.  Incorporation,  name,  general  powers.—^  it 

enacted  by  the  General  Assembly  oftke  State  of  Tennessee,  That 
a  body  politic  and  corporate  is  hereby  constituted  by  the  name 
and  style  of  the  Southwestern  Railroad  Company,  for  the  pur- 
pose of  constructing  a  railroad  from  Danville,  in  the  State  of 
Kentucky,  to  connect  with  the  McMinnville  &  Manchester 
Railroad,  and  said  company  shall  have  and  enjoy  all  the  rights, 
powers,  and  privileges,  and  be  subject  to  all  the  liabilities  and 
restrictions,  prescribed  in  the  charter  of  the  Nashville  &  Chatta- 
nooga Railroad  Company,  and  in  the  various  amendments 
thereto,  except  as  herein  further  provided. 

1.  It  will  be  noticed  that  the  above  section  conferred  upon  the  com- 
pany all  the  rights,  powers,  and  privileges,  and  subjected  it  to  all  the 
liabilities  and  restrictions,  of  the  Nashville  &  Chattanooga  Railroad  Com- 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.         195 

pany's  charter.     For  full  discussion  thereof,  see  chapter  1,  herein.     See, 
also,  index  for  particular  power  desired. 

2.  The  legislature  may  lawfully  confer  upun   one  company  all  the 
rights,  powers,  franchises,  etc.,  of  another  by  simply  referring  to  it  in 
the  manner  that  this  was  done.     See  8  Lea  (Tenn.),  427. 

3.  By  Acts  1868-69.  ch.  11,  p.  93,  sec.  25,  the  Nashville  &  Cincinnati  Rail- 
road Company  was  granted  the  privilege  of  uniting  on  a  common  track 
with  this  company  from  the  junction  of  the  Tennessee  &  Pacific  Railroad 
with  this  company's  railroad  to  Danville,  Ky.,  if  companies  agreed.    See 
act  in  next  chapter. 

4.  By  Acts  Tenn.,  1849-50,  ch.  259,  p.  497,  another  company  was  char- 
tered, known  as  the  Sparta  «fe  McMinnville  Railroad  Company,  for  the 
purpose  of  constructing  a  railroad  from  McMinnville  to  Sparta,  but  that 
company  was  never  organized. 

SEC.  2.  Capital,  increase  of  value  of  shares,  election  of 
president  and  directors,  voting.— /?*  it  enacted,  That  the  capi- 
tal stock  of  said  company  shall  be  one  million  of  dollars,  to  be 
divided  into  shares  of  twenty-five  dollars  each,  and  the  com- 
pany shall  have  power  to  increase  the  capital  stock  to  three 
millions  of  dollars;  and,  whenever  five  thousand  shares  of  the 
capital  stock  are  subscribed  for,  said  company  may  organize 
by  the  election  of  a  board  of  directors,  who  shall  elect  a  presi- 
dent from  their  number,  as  prescribed  in  the  charter  of  the 
Nashville  &  Chattanooga  Railroad  Company,  and,  at  all  meet- 
ings of  the  stockholders,  when  a  vote  is  to  be  taken,  One  vote  for 
each  stockholder  shall  be  entitled  to  one  vote  for  eachshare- 
each  share  of  stock  held  by  him. 

By  Acts  Tenn.,  1855-56,  ch.  229,  p.  469,  sees.  4,  9,  the  charter  of  this 
company  was  amended  so  that  any  stockholder  should  be  eligible  as  a 
director,  or  to  any  other  office,  without  reference  to  the  amount  of  his 
stock. 

SEC.  3.  Commissioners,  powers  of,  subscriptions  to  stock. 

— Be  it  enacted,  That  A.  Philips,  E.  N.  Cullom,  R.  Kenner, 
J.  L.  Goodall,  O.  S.  Woods,  R.  B.  Cain,  Thomas  E.  Bram- 
lett,  D.  Haggard,  J.  H.  West,  J.  L.  Quarles,  R.  Blain,  J.  F. 
Bell,  W.  Lair,  C.  B.  Coffee,  and  M.  J.  Brien  be,  and  they  are 
hereby,  constituted  a  board  of  commissioners,  a  majority  of 
whom  may  act,  to  manage  all  the  affairs  of  said  company  until 
it  shall  l>e  organized  by  the  election  of  a  board  of  directors  as 
aforesaid,  to  procure  the  subscriptions  of  stock,  by  the  appoint- 
ment of  an  agent  or  agents  for  that  purpose,  or  in  such  manner 
as  they  may  deem  best;  to  provide  for  experimental 

Survcvs 

surveys  of   routes  for  such  railroad,  and  for   the 


196    ORIGINAL    CHARTER    OF    SOUTHWESTERN    RAILROAD    CO. 

payment  for  making  said  surveys,  and  for  procuring  said  sub- 
scriptions, out  of  such  calls  on  the  stock  subscribed  for,  as  they 
may  deem  advisable,  out  of  the  funds  hereafter  provided  for, 
but  they  shall  not  be  compelled  to  require  any  part  of  the  stock 
subscribed  for  to  be  paid  in  cash  at  the  time  it  is  subscribed  for. 

At  all  meetings  of  said  commissioners,  they  may 
Commission-  .  ,     .  ,  . 

ers,  how  to       vote  in  person  or  by  proxy  in  relation  to  the  affairs 

of  the  company,  before  its  organization  as  afore- 
said, and  they  shall  require  each  subscriber  to  execute  his  note 

to  the  company  for  one  dollar  for  each  share  sub- 
Subscriber  to  J 

foresubescripe-s  scrilje(1  for  °y  him,  and  it  shall  be  lawful  for  the 
same  to  be  sued  for  and  recovered  of  such  sub- 
scriber in  the  name  of  the  company,  whether  organized  or  not, 
to  be  used,  when  paid,  in  defraying  the  expenses  incurred  by 
the  commissioners  in  the  manner  aforesaid. 

SEC.  -L  Road  to  commence  and  be  completed,  when ;  inte- 
gral parts. — Be  it  further  enacted,  That  said  company  shall 
have  ten  years  to  complete  their  said  railroad,  and  whenever 
five  miles  of  the  road  shall  have  been  completed  said  company 
may  carry  on  its  regular  business  upon  the  same.  And  said 
company  shall  have  five  years  in  which  to  begin  the  construc- 
tion of  said  railroad.  (Acts  Tenn.,  1851-2,  ch.  269,  p.  462; 
passed  January  31,  1852.) 

1.  By  Acts  Tenn..  1853-4,  ch.  131,  p.  205,  sec.  11,  the  further  time  of 
two  years  was  given  this  company  to  bring  itself  within  the  provisions 
of  the  act  entitled  "An  act  to  establish   a  system  of  internal  improve- 
ments in  this  state. " 

2.  By  Acts  Tenn.,  1855-6,  ch.  60,  p.  67,  sec.  5,  an  additional  two  years 
was  granted  as  above. 

3.  By  Acts   Tenn.,   1857-8.  ch.   130,  p.  326,  sec.  2,  an    additional  two 
years  was  granted  as  above. 

4.  Extra  time  granted  to  complete  road. — By  Acts  Tenn.,  1865-6,  ch. 
107,  p.  295.  this  company  was  granted  the  further  time  of  ten  years  to 
complete  its  road. 

5.  By  Acts  1859-60,  ch.  78,  p.  305.  sec.  1,  the  further  time  of  two  years 
was  granted  this  company  to  bring  itself  within  internal  improvement 
acts. 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         197 


CHAPTER   XII. 

ACTS   OF  TENNESSEE  RELATING  TO  SOUTHWESTERN  RAIL- 
ROAD  COMPANY. 

Nashville  &  Cincinnati  Railroad  Company  authorized  to  unite 
on  common  track  witb  Southwestern  Railroad  Company, 
how. 

SEC.  25.  Be  it  furtlier  enacted,  That  the  Nashville  &  Cin- 
cinnati Railroad  Company  may  unite  on  a  common  track  with 
the  Southwestern  Railroad  Company  from  the  junction  of  the 
Tennessee  &  Pacific  Railroad  with  the  Southwestern  from  said 
junction  to  Danville,  Kentucky,  if  the  companies  shall  both 
agree  on  said  union  or  consolidation,  by  filing  a  written  state- 
ment of  the  contract  with  the  governor  of  the  State  of  Ten- 
nessee, which  contract  shall  be  made  a  matter  of  record,  and 
said  contract  shall  be  valid  and  binding  in  law  and  equity,  and 
both  companies  shall  have  all  the  rights  and  privileges  now 
granted  by  law  to  each  company,  except  that  there  shall  be 
but  one  set  of  officers  on  the  road  after  the  consolidation,  and 
shall  be  governed  by  the  general  internal  improvement  laws, 
with  all  the  amendments  thereto.  (Acts  Tenn.,  1868-9,  ch. 
11,  p.  93,  sec.  25;  passed  December  9,  1868.) 

Comptroller  of  state  authorized  to  settle  with  receiver. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the  State 
of  Tennessee,  That  the  comptroller  be,  and  is  hereby,  authorized 
and  directed  to  settle  with  George  G.  Dibrell,  as  receiver  and 
late  president  of  the  Southwestern  Railroad  Company. 

SEC.  2.  Be  it  farther  enacted,  That  when  said  settlement 
shall  have  been  made,  it  may  be  made  on  the  evidence  of  George 
G.  Dibrell,  or  any  other  evidence  proper  and  legal  in  itself. 
If  there  shall  be  any  sum  found  to  be  due  said  receiver  for  a 
balance  of  salary,  the  comptroller  shall  issue  his  warrant  for 
the  same  in  favor  of  George  G.  Dibrell,  said  receiver,  for 


198         ACTS    RELATING    TO    SOUTHWESTERN    RAILROAD    CO. 

whatever  amount  shall  be  found  to  be  due  him  on  final  settle- 
ment. 

SEC.  3.  Be  it  further  enacted,  That  this  act  shall  take  effect 
from  and  after  its  passage,  the  public  welfare  requiring.  (Acts 
Tenn.,  1875,  ch.  50,  p.  47;  passed  March  10,  1875.) 

State  aid  to  the  Southwestern  Railroad  Company.  -Many 

acts  of  the  legislature  of  the  State  of  Tennessee  were  passed 
authorizing  state  aid  to  be  granted  to  the  Southwestern  Rail- 
road for  the  purpose  of  building  and  equipping  its  road.  The 
state  aid  was  given  by  having  the  governor  to  indorse  the 
bonds  of  the  road  on  behalf  of  the  state.  These  acts  are  quite 
lengthy,  and  are  so  seldom  required  that,  for  the  purpose  of 
space  and  economy,  it  is  not  deemed  advisable  to  insert  them 
in  full  in  this  compilation,  but  simply  to  refer  to  the  act  and 
page  where  they  can  be  found.  Below  will  be  found  all  acts 
relating  to  this  subject  set  out  in  the  order  of  their  passage. 

Acts  1851-52,  ch.  151,  sec.  10,  governor  authorized  to 
issue  coupon  bonds  for  amount  not  exceeding  $8,000  a  mile,  on 
certain  conditions.  For  conditions,  see  act. 

Acts  1853-54,  ch.  235,  p.  478,  governor  authorized  to 
issue  bonds,  to  under  certain  conditions,  which  included  the 
bridge  across  Collins  river,  Caney  Fork,  and  Obed  rivers. 

Acts  1853-24,  ch.  131,  sec.  1,  state  aid  to  the  extent  of 
$10  a  mile.  Under  section  11  of  this  act  the  Southwestern 
Railroad  Company  was  also  granted  two  years  to  bring  this 
within  the  provisions  of  an  act  entitled  "An  act  to  establish  a 
system  of  internal  improvements  in  this  state. ' ' 

Acts  1857-58,  ch.  118,  p.  301,  state  aid  granted. 

Acts  1855-56,  ch.  235,  p.  478,  sec.  2,  state  aid  granted. 

Acts  1859-60,  ch.  78,  p.  305,  sec.  3,  state  aid  granted. 

Acts  1867-68,  ch.  17,  p.  14,  sec.  4,  state  aid  granted  to 
extent  of  $300,000. 

Acts  1868-69,  ch.  53,  p.  264,  sec.  32,  state  aid  granted. 


NASHVILLE,    CHATTANOOGA    <fe    ST.     LOUIS    RAILWAY.          199 


CHAPTER  XIII. 

THE    BON    AIR    RAILWAY    COMPANY. 
(EXTENSION  OF  MC.MINNVILLE   BRANCH.) 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— On  December  3,  1887,  the  Bon  Air  Railway  Company, 
pursuant  to  a  resolution  of  its  stockholders  and  directors,  exe- 
cuted a  deed  to  its  railroad,  roadbed,  right  of  way,  sidings, 
depots,  grounds,  franchises,  properties,  etc.,  to  the  Nashville, 
Chattanooga  &  St.  Louis  Railway.  The  consideration  paid  was 
the  assumption  and  payment  by  the  latter  company  of  the  cost 
of  constructing  said  road,  including  right  of  way,  etc.  The 
deed  to  the  same  is  recorded  in  the  register's  office  of  White 
county,  in  book  vol.  31,  p.  77.  It  is  also  inserted  herein,  in 
next  chapter. 

This  purchase  was  legal.  Under  the  Acts  of  Tennessee,  1871,  ch. 
C9,  which  superseded  the  Acts  of  1871,  ch.  22,  it  was  provided  that 
"every  railroad  corporation  in  this  state,  whether  created  under  a  gen- 
eral or  special  law,  shall  have  power  to  acquire,  by  purchase  or  other 
lawful  contract,  and  have,  hold,  use,  and  operate,  any  railroad,  with  its 
franchises,  belonging  to  any  other  railroad  company. 

What  franchises,  etc.,  passed  under  this  sale.— in  addition 

to  the  road  and  other  proj)erty  conveyed,  the  deed  specifically 
transferred  all  the  emoluments,  franchises,  immunities,  and 
rights  under  the  charter  of  said  company,  including  the  right 
to  extend  the  road  to  the  Kentucky  state  line,  and  to  build 
branches  thereof.  For  particular  enumeration  of  franchises, 
see  charter  of  said  company,  further  on  in  this  chapter. 

Width  Of  right  Of  way. — This  charter  was  granted  under 
the  general  Acts  of  1875,  ch.  14:2.  In  it  there  is  no  clause 
vesting  title  to,  or  an  easement  over,  any  particular  number  of 
feet,  in  the  absence  of  a  written  contract  with  the  original  land- 
owner, as  is  the  case  in  most  of  the  charters  granted  by  special 
act.  It  will  be  noticed  that,  by  section  9  of  its  charter,  the 


200  ORIGINAL    CHARTER    OF    BON    AIR    BRANCH 

company  was  given  power  to  condemn  an  easement  in  lands  for 
a  right  of  way  not  exceeding  two  hundred  feet.  Under  this 
authority,  therefore,  the  Bon  Air  Railway  could  have  originally 
condemned  any  number  of  feet,  up  to  and  including  the  two 
hundred,  for  said  purpose.  Whatever  number  of  feet  it  may 
have  condemned,  however,  it  will  now  be  limited  to  that  amount, 
and  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  as  the 
lawful  purchaser  thereof,  will  be  entitled  to  no  greater  rights. 
If  no  condemnation  proceedings  were  had  at  all,  the  entry  and 
construction  of  the  road  would  be  regarded  as  an  appropriation 
of  the  full  amount  of  land  authorized  by  the  charter,  which 
would  be  two  hundred  feet.  (Duck  River  Valley  Narrow  Gauge 
Railroad  Co.  v.  Cochrane,  3  Lea  (Tenn.),  478;  see,  also,  sec- 
tion 33  of  the  charter  of  the  Bon  Air  Railway,  further  on  in 
this  chapter.) 

1.  For  right  of  successive  appropriations,  and  its  application  to  char- 
ters granted  under  the  general  Acts  of  1875,  ch.  142,  see  Eminent  Do- 
main, Right  of  Way,  herein;  refer  to  index. 

2.  By  Acts  1849-50,  ch.  266,  sec.  3,  it  was  provided  that  all  branches  of 
the  Nashville  &  Chattanooga  Railroad  as  may  be  made,  shall  have  all 
the  rights  and  privileges,  and  shall  be  placed   in  all  respects    on   the 
same  footing,  with   the   Nashville  &  Chattanooga  Railroad  Company. 
This  act  has  never  been  construed  by  the  supreme  court,  but,  if  a  favor- 
able construction  was  given,  it  would  considerably  enlarge  the  rights  of 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  as  to  the  right  of  way 
on  this  branch.     A  test  case  should  be  made. 

Distance  built  when  purchased. — The  road  from  Sparta  to  Bon  Air, 
a  distance  of  six  and  one-half  miles,  had  been  constructed  when  pur- 
chased by  the  Nashville,  Chattanooga  &  St.  Louis  Railway.  The  road 
has  not  as  yet  been  built  to  the  Kentucky  line. 

ORIGINAL  CHARTER  OF  THE  BON  AIR 
RAILWAY. 

(Chartered  under  General  Acts  Tenn.,  1875,  ch.  142,  sec.  6.) 

SECTION  i.  Incorporation,  name,  route,  general  powers.— 

Be  it  known,  That  W.  C.  Dibrell,  J.  W.  Thomas,  G.  M.  Fogg, 
J.  H.  Ambrose,  and  L.  L.  Losey  are  hereby  constituted  a  body 
politic  and  corporate  by  the  name  and  style  of  "  The  Bon  Air 
Railway,"  for  the  purpose  of  constructing  a  railway  from 
Sparta,  in  the  county  of  White,  to  Bon  Air  coal  fields,  in  said 
county,  a  distance  of  six  miles  and  a  half,  and  for  the  further 
purpose  of  extending  said  road  northwardly  and  northeast- 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS   RAILWAY.         201 

wardly  in  the  direction  of  the  Cincinnati  Southern  Railroad,  to 
the  Kentucky  state  line,  with  full  power  to  construct  such 
branches  along  the  route  of  the  main  stem  to  coal  Mayconstruct 
fields,  ore  banks,  or  such  other  }x>ints  as  the  stock-  br*nch€s- 
holders  of  this  company,  or  its  successors,  may  determine  to  be 
for  the  interest  of  the  company  from  time  to  time,  and  with 
full  power  to  run  and  operate  the  same,  and  ito  equip  and  use 
it  as  a  railroad  and  common  carrier. 

1.  Charter  amended,  may  change  termini. — By  Acts  1887.  ch.   39, 
sees.  1,  2,  all  railroad  companies  chartered  under  the  general  laws  of 
this  state,  may,  by  resolution  of  board  of  directors,  change  either  termi- 
nus before  the  final  location  of  the  road.     See  act  itself  for  method. 

2.  By-laws  for  arbitration  sustained.     7  Pick.  (Tenn.),  64. 

3.  By  Acts  1889,  ch.  158,  all  railroad  companies  chartered  under  the 
general  laws  of  the  state  are  allowed  to  build  branch  roads.     See  act 
itself  for  method. 

SEC.  2.  General  powers  (Continued).— The  general  powers 
of  said  corporation  are,  to  sue  and  be  sued  by  the  corporate 
name,  to  have  and  use  a  common  seal,  which  it  may  alter  at 
pleasure;  if  no  common  seal,  then  the  signature  of  the  name  of 
the  corporation  by  any  duly  authorized  officer  shall  be  legal  and 
binding;  to  purchase  and  hold  or  receive  by  gift,  in  addition  to 
the  personal  property  owned  by  said  corporation,  any  real  estate 
necessary  for  the  transaction  of  the  corporate  business,  and  also 
to  purchase  or  accept  any  real  estate  in  payment,  or  part  pay- 
ment, of  any  debt  due  to  the  corporation,  and  sell  realty  for 
corporation  purposes;  to  establish  by-laws  and  make  all  rules 
and  regulations,  not  inconsistent  with  the  laws  and  the  consti- 
tution, deemed  expedient  for  the  management  of  corporate 
affairs;  to  appoint  such  subordinate  officers  and  agents,  in  ad- 
dition to  the  president  and  secretary,  or  treasurer,  as  the  busi- 
ness of  the  corporation  may  require;  to  designate  the  name  of 
the  office  and  fix  the  compensation  of  the  officer. 

SEC.  3.  Special  provisions. — The  following  provisions  and 
restrictions  are  coupled  with  said  grant  of  powers:  A  failure  to 
elect  officers  at  the  proper  time  does  not  dissolve  the  corpora- 
tion, but  those  in  office  hold  until  the  election  or  appointment 
and  qualification  of  their  successors.*  The  term  of  all  officers 
may  l>e  fixed  by  the  by-laws  of  the  corporation,  the  same  not, 


202  ORIGINAL    CHARTER    OF    BON    AIR    BRANCH 

however,  to  exceed  two  years.  The  corporation  may,  by  by- 
laws, make  regulations  concerning  the  subscription  for  or  trans- 
fer of  stock,  fix  upon  the  amount  of  capital  to  be  invested  in 
the  enterprise,  the  division  of  the  same  into  shares,  the  time 
required  for  payment  thereof  by  the  subscribers  for  stock,  the 
amount  to  be  called  for  at  any  one  time;  and  in  case  of  failure 
of  any  stockholder  to  pay  the  amount  thus  subscribed  by  him 
at  the  time  and  in  the  amounts  thus  called,  a  right  of  action 
shall  exist  in  the  corporation  to  sue  said  defaulting  stockholder 
for  the  same. 

*See  3  Hum.,  531;  12  Lea,  252;  4  Cold.,  101. 

SEC.  4.  Directors,  quorum  Of,  bOOkS.  — The  board  of  direct- 
ors, which  may  consist  of  five  or  more  members,  at  the  op- 
tion of  the  corporation,  to  be  elected  either  in  person  or  by 
proxy,  by  a  majority  of  the  votes  cast,  each  share  representing 
one  vote,  shall  keep  a  full  and  true  record  of  all  their  proceed- 
ings, and  an  annual  statement  of  receipts  and  disbursements 
shall  be  copied  on  the  minutes,  subject  at  all  times  to  the  in- 
spection of  any  stockholder.  The  books  of  the  corporation 
shall  show  the  original  or  subsequent  stockholders,  their  re- 
spective interests,  the  amount  which  has  been  paid  on  the 
shares  subscribed,  the  transfer  of  stock,  by  and  to  whom 
made;  also  other  transactions  in  which  it  is  presumed  a  stock- 
holder or  creditor  may  have  an  interest. 

SEC.  6.  Unpaid  StOCk. — The  amount  of  any  unpaid  stock 
due  from  a  subscriber  to  the  corporation  shall  be  a  fund  for 
the  payment  of  any  debts  due  from  the  corporation,  nor  shall 
the  transfer  of  stock  by  any  subscriber  relieve  him  from  pay- 
ment, unless  his  transferee  has  paid  up  all  or  any  of  the  balance 
due  on  said  original  subscription. 

See  10  Pick.  (Term.),  154,  608. 

SEC.  6.  Express  and  implied  powers.  —  By  no  implication 
or  construction  shall  the  corporation  be  deemed  to  possess  any 
powers  except  those  hereby  expressly  given  or  necessarily  im- 
plied from  the  nature  of  the  business  for  which  the  charter  is 
granted,  and  by  no  inference  whatever  shall  said  corporation 


NASHVILLE,    CHATTANOOGA    A    ST.    LOLLS    RAILWAY.          203 

possess  the  power  to  discount  notes  or  bills,  deal  in  gold  or 
silver  coin,  issue  any  evidence  of  debts  as  currency,  buy  and 
sell  any  agricultural  products,  deal  in  merchandise,  or  engage 
in  any  business  outside  the  purpose  of  the  charter. 

SBC.  7.  Charter  may  be  repealed  or  amended.— The  right  is 

reserved  to  repeal,  annul,  or  modify  this  charter.  If  it  is  re- 
pealed, or  if  the  amendments  proposed,  being  not  merely  aux- 
iliary but  fundamental,  are  "rejected  by  a  vote  representing 
more  than  half  of  the  stock,  the  corporation  shall  continue  to 
exist  for  the  purpose  of  winding  up  its  affairs,  but  not  to  enter 
upon  any  new  business.  If  the  amendments  or  modifications, 
being  fundamental,  are  accepted  by  the  corporation  as  afore- 
said, in  a  general  meeting  to  be  called  for  that  purpose,  any 
minor,  married  woman,  or  other  person  under  disability,  or 
any  stockholder  not  agreeing  to  the  acceptance  of  the  modifica- 
tion, shall  cease  to  be  a  stockholder,  and  the  corporation  shall 
be  liable  to  pay  said  withdrawing  stockholders  the  par  value  of 
their  stock,  if  it  is  worth  so  much;  if  not,  then  so  much  as  may 
be  its  real  value  in  the  market  on  the  day  of  the  withdrawal  of 
said  stockholders  as  aforesaid;  Provided,  That  the  claims  of  all 
creditors  are  to  be  paid  in  preference  to  said  withdrawing  stock- 
holders. 

The  charter  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway  can- 
not be  repealed  or  amended  without  the  consent  of  the  company.  See 
section  34  of  that  charter. 

SEC.  8.  Directors,  quorum  of;  may  borrow  money,  issue 

bonds,  mortgages,  etc. — A  majority  of  the  board  of  directors 
shall  constitute  a  quorum,  and  shall  fill  all  vacancies  until  the 
next  election.  The  first  board  of  directors  shall  consist  of 
the  five  or  more  corporators  who  shall  apply  for  and  obtain 
the  charter.  The  said  corporation  may  have  the  right  to  bor- 
row money  and  issue  notes  or  bonds  upon  the  faith  of  the  cor- 
porate property,  and  also  to  execute  a  mortgage  or  mortgages 
as  further  security  for  repayment  of  money  thus  borrowed. 

SEC.  9.  Condemnation  of  right  of  way,  two  hundred  feet.— 

The  said  corporation  shall  have  the  right,  in  pursuance  of  the 
general  law  authorizing  the  condemnation  of  private  proj>erty 


204  ORIGINAL    CHARTER    OF    BON    AIR    BRANCH 

for  works  of  internal  improvement,  as  set  forth  in  §§  1325- 
1348  in  the  code  (both  inclusive),  to  appropriate  as  an  easement 
the  right  of  way,  not  exceeding  two  hundred  feet,  over  the  land 
of  any  person  through  which  the  line  of  the  track  may  be 
located.  Said  sections  of  the  code  are  hereby  literally  copied 
and  inserted  in  the  words  and  figures  following: 

SEC.  10  (1325).  Land  may  be  taken,  hOW. — Any  person  or 
corporation  authorized  by  law  to  construct  any  railroad,  turn- 
pike, canal,  tollbridge,  road,  causeway,  or  other  work  of  in- 
ternal improvement  to  which  the  like  privilege  is  conceded,  may 
take  the  real  estate  of  individuals  not  exceeding  the  amount 
prescribed  by  law,  or  by  the  charter  under  which  the  person 
or  corporation  acts,  in  the  manner  and  upon  the  terms  herein 
provided.  (Iowa  code,  1851,  §759.) 

1.  Disability  of  owner  does  not  affect  the  right. — The  right  to  take 
land  under  the  power  of  eminent  domain  is  not  restricted  by  any  dis- 
ability of  the  owner,  who  is  entitled  to  demand  and  receive  the  value  of 
the  property,  but  must  show  title.     3  Head  (Tenn.).  63-65. 

2.  By  Acts  1885,  ch.  135,  the  operation  of  this  and  succeeding  sections 
was  extended  so  as  to  apply  and  include  the  condemnation  and  taking 
of  the  property,  privileges,  rights,  or  easements  of  private  corporations. 
See  act  itself  for  method. 

3.  By  Acts  1889,  p.  447,  as  embodied  in  Shannon's  Code,  \  1879,  it  was 
made  unlawful  to  construct  or  use  any  steam  railway  on  any  county 
road  or  highway,  without  the  consent  of  the  county  court,  to  be  granted 
in  the  method  therein  set  out. 

SEC.  11  (1326).  Proceedings,  petition,  etc.— The  party  seek- 
ing to  appropriate  such  lands  shall  file  a  petition  in  the  circuit 
court  of  the  county  in  which  the  land  lies,  setting  forth,  in  sub- 
stance, (1)  the  parcel  of  land  a  portion  of  which  is  wanted,  and 
the  extent  wanted,  (2)  the  name  of  the  owner  of  such  land,  or  if 
unknown,  stating  the  fact,  (3)  the  object  for  which  the  land  is 
wanted,  (4)  a  prayer  that  a  suitable  portion  of  land  may  be  de- 
creed to  the  petitioner  and  set  apart  by  metes  and  bounds. 
(Iowa  code,  1851,  §760.) 

Petition  need  not  be  sworn  to. 

SEC.   12  (1327).   Notice  to  owner. — Notice  of  this  petition 
shall  be  given  to  the  owner  of  the  land,  or,  if  a  nonresident  of 
the  county,  to  his  agent,  at  least  five  days  before  its  presenta 
tion.      (Ib. ,  modified.) 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         205 

SEC.  13  (1328).  Where  owner  nonresident— If  the  owner 

is  a  nonresident  of  the  state,  or  unknown,  notice  shall  be  given 
by  publication  as  provided  in  this  code  in  similar  cases  in 
chancery. 

SEC.  u  (1329).  Proceedings  only  bind  parties.— All  parties 

having  any  interest  in  any  way  in  such  land  may  be  made  de- 
fendants, and  the  proceedings  will  only  cover  and  affect  the 
interest  of  those  who  are  actually  made  parties,  unborn  remain- 
der-men being,  however,  bound  by  proceedings  to  which  all 
living  persons  in  interest  are  parties. 

Tenants  for  life,  years,  and  reversioners  are  interested  parties,  and 
must  be  compensated.  2  Head  (Tenn.),  65,  176. 

SEC.  15  (1330).  Writ  of  inquiry  of  damages.— After  the 

requisite  notice  has  been  given,  if  no  sufficient  cause  to  the  con- 
trary is  shown,  the  court  shall  issue  a  writ  of  inquiry  of  dam- 
ages to  the  sheriff,  commanding  him  to  summon  a  jury  to  in- 
quire and  assess  the  damages.  (Iowa  code,  1851,  §  763.) 

SEC.  16  (1331).  Clerk  to  issue  writ,  sheriff  to  summon 

jury. — By  consent  of  parties,  or  on  application  of  the  plaintiff, 
unless  objection  is  made  by  the  defendant,  the  writ  of  inquiry 
may  be  issued  by  the  clerk  as  of  course,  after  service  of  notice, 
on  which  the  sheriff  will  summon  the  jury. 

SEC.  17  (1332).  Jury  to  be  disinterested.— The  jurors  shall 
not  be  interested  in  the  same,  or  a  similar  question,  and  shall 
possess  the  qualifications  of  other  jurors,  and  may  be  nominated 
by  the  court,  selected  by  consent  of  parties,  or  summoned  by 
the  sheriff. 

SEC.  18  (1333).  Failure  to  attend.— If  named  by  the  court, 
and  the  persons  named  are  unable  to  attend  when  summoned, 
the  place  of  such  persons  shall  be  supplied  by  the  sheriff. 

SEC.  19  (1334).  Number  of  jurors,  challenges.— The  jury 

will  consist  of  five  persons,  unless  the  parties  agree  upon  a  dif- 
ferent number,  and  either  party  may  challenge  for  cause,  or 
peremptorily,  as  in  other  civil  cases. 
See  11  Heis.,  56;  12  H.-is..  56,  57. 

SEC.  20  (1335).  Notice  Of  taking  inquest.— The  sheriff  shall 
give  the  parties  or  their  agents,  if  residents  of  the  county,  three 


206  ORIGINAL    CHARTER    OF    BON    AIR    BRANCH 

days'  notice  of  the  time  and  place  of  taking  the  inquest,  unless 
the  time  has  been  fixed  by  the  order  of  the  court.  (Iowa  code, 
1851,  §771.) 

SEC.  21  (1336).  Jury  to  be  sworn  by  sheriff.— The  jury, 

before  proceeding  to  act,  shall  be  sworn  by  the  sheriff,  fairly 
and  impartially,  without  favor  or  affection,  to  lay  off,  by  metes 
and  bounds,  the  land  required  for  the  proposed  improvement, 
and  to  inquire  and  assess  the  damages. 

SEC.  22  (1337).  To  examine  ground  and  assess  damages.— 

The  jury  will  then  proceed  to  examine  the  ground  and  may 
hear  testimony,  but  no  argument  of  counsel,  and  set  apart,  by 
metes  and  bounds,  a  sufficient  quantity  of  land  for  the  purposes 
intended,  and  assess  the  damages  occasioned  to  the  owner 
thereby.  (Iowa  code,  1851,  §  768.) 
See  3  Lea,  482. 

SEC.  23  (1338).  Damages,  how  estimated.— In  estimating 
the  damages,  the  jury  shall  give  the  value  of  the  land  without 
deduction,  but  incidental  benefits  which  may  result  to  the  owner 
by  reason  of  the  proposed  improvement  may  be  taken  into  con- 
sideration in  estimating  the  incidental  damages. 

For  full  discussion  of  this,  see  Eminent  Domain,  herein.  Refer  to 
index. 

SEC.  24  (1339).  Report  returned  in  writing.— The  report  of 

the  jury  shall  be  reduced  to  writing,  signed  by  a  majority  of 
the  jurors,  delivered  to  the  sheriff,  and  by  him  returned  into 
court. 

SEC.  25  (1340;.  Confirmation  Of  report. — If  no  objection  is 
made  to  the  report,  it  is  confirmed  by  the  court,  and  the  land 
decreed  to  the  petitioner,  upon  payment  to  the  defendants,  or 
to  the  clerk  for  their  use,  of  the  damages  assessed,  with  costs. 
(/&.,  §775,  modified.) 

SEC.  26  (1341).  Exception  to  report  and  new  writ.— Either 

party  may  object  to  the  report  of  the  jury,  and  the  same  may, 
on  good  cause  shown,  be  set  aside  and  new  writ  of  inquiry 
awarded.  (Acts  1849-50,  ch.  72,  sec.  5.) 

SEC.  27  (1342).  Appeal,  new  trial.  —  Either  party  may  also 
appeal  from  the  finding  of  the  jury,  and  on  giving  security  for 


NASHVILLE,    CHATTANOOOA    A    ST.     LOUIS    RAILWAY.          207 

the  costs,  have  a  trial  anew  before  a  jury  in  the  usual  way. 
(/£.,  modified.) 

See  12  Heis.  (Tenn.),  57. 

SEC.  28(1343).    Costs  against  appellant  when  not.  —  If 

the  verdict  of  the  jury  upon  the  trial  affirms  the  finding  of  the 
jury  of  inquest,  or  is  more  unfavorable  to  the  appellant  than 
the  finding  of  such  jury,  the  costs  shall  l>e  adjudged  against 
such  appellant;  otherwise  the  court  may  award  costs  as  in 
chancery  cases.  (/&.) 

SEC.  29  (1344).  Appeal  does  not  suspend  work,  how.  - 

The  taking  an  appeal  does  not  suspend  the  operations  of  the 
petitioner  on  the  land,  provided  such  jietitioner  will  give  bond 
with  good  security,  to  be  approved  by  the  clerk,  in  double  the 
amount  of  the  assessment  of  the  jury  of  inquest,  payable  to  the 
defendant,  and  conditioned  to  abide  by  and  perform  the  final 
judgment  in  the  premises. 

SEC.  30  (1345).  Preliminary  surveys,  damages. —  A  per- 
son or  company  actually  intending  to  make  application  for  the 
privileges  herein  contemplated,  and  entering  upon  the  land  of 
another  for  the  purpose  of  making  the  requisite  examinations 
and  surveys,  and  doing  no  unnecessary  injury,  is  liable  only 
for  the  actual  damage  done;  and,  sued  in  such  case,  the  plain- 
tiff shall  recover  only  as  much  costs  as  damages.  (Iowa  code, 
1851,  §  77S.) 

SEC.  31  (1346).  Damages  to  be  prepaid,  or  bond  on  appeal. 

-  No  person  or  company  shall,  however,  enter  upon  such  land 
for  the  purpose  of  actually  occupying  the  right  of  way  until 
the  damages  assessed  by  the  jury  of  inquest  and  the  cost  have 
been  actually  paid;  or,  if  an  appeal  has  been  taken,  until  the 
bond  has  been  given  to  abide  by  the  final  judgment,  as  before 
provided. 

See  6  Cold.,  162;  7  Heis.,  518,  535;  13  Lea,  671. 

SEC.  32  (1347).  Owner  may  have  inquest  or  sue  for  dam- 
ages, when  ',  proceedings. — If,  however,  such'  person  or  com- 
pany has  actually  taken  possession  of  such  land,  occupying  it 
for  the  purpose  of  internal  improvement,  the  owner  of  such 


208  ORIGINAL    CHARTER    OF    BON    AIR    BRANCH 

land  may  petition  for  a  jury  of  inquest,  in  which  case  the  same 
proceedings  may  be  had,  as  near  as  may  be,  as  hereinbefore 
provided;  or  he  may  sue  for  damages  in  the  ordinary  way,  in 
which  case  the  jury  shall  lay  off  the  land  by  metes  and  bounds 
and  assess  the  damages,  as  upon  the  trial  of  an  appeal  from 
the  return  of  a  jury  of  inquest. 

See  2  Head,  174,  65;  3  Lea,  480;  13  Lea,  670. 

SEC.  33  (1348).  Limitation  of  proceedings  by  owner.— The 

owners  of  land  shall,  in  such  cases,  commence  proceedings 
within  twelve  months  after  the  land  has  been  actually  taken 
possession  of  and  the  work  of  proposed  internal  improvement 
begun;  saving,  however,  to  unknown  owners  and  nonresidents 
twelve  months  after  actual  knowledge  of  such  occupation,  not 
exceeding  three  years;  and  saving  to  persons  under  disabilities 
of  infancy,  coverture,  and  unsoundness  of  mind  twelve  months 
after  such  disability  is  removed,  but  not  exceeding  ten  years. 
See  12  Heis.,  623.  See  Eminent  Domain  herein.  Refer  to  index. 

SEC.  34.  Gauge,  transportation  charges,  tracks  not  to  ob- 
struct roads,  highways,  Streets,  etc.— The  corporation  is  au- 
thorized to  adopt  such  gauge  as  they  may  prefer.  The  charge 
for  transportation  shall  not  exceed  twenty-five  cents  per  hun- 
dred pounds  on  heavy  articles,  and  ten  cents  per  cubic  foot  on 
articles  of  measurement  for  every  hundred  miles  transported, 
and  four  cents  per  mile  for  every  passenger,  with  power  to 
make  special  contracts  with  shippers  on  their  roads  in  regard 
to  rate  of  freight  so  as  not  to  exceed  the  amounts  herein  desig- 
nated. The  line  of  track  of  the  road  shall  be  so  constructed 
so  as  not  to  interfere  with  convenient  travel  of  the  public  along 
the  highways,  country  roads,  streets  and  alleys  of  cities,  towns, 
and  villages,  and  so  as  to  allow  carts,  wagons,  carriages,  and 
other  vehicles  conveniently  and  safely  to  pass  over  or  under 
the  line  of  the  track,  and  so  as  not  to  intercept  traveling  on 
foot  or  horseback,  or  in  vehicles  of  any  kind,  from  the  neces- 
sary and  proper  use  of  the  public  roads,  streets  or  alleys,  in 
the  usual  and  proper  mode  for  their  convenience. 

By  Acts  1885,  ch.  20.  all  railroad  companies  in  the  state  were  author- 
ized to  select  and  alter  the  gauge  of  their  road  at  pleasure. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.          209 

SEC.  35.  Crossings,  Signboards. — Hoards,  well  supported 
by  posts  or  otherwise,  shall  l>e  placed,  and  constantly  kept, 
across  each  public  road;  when  the  same  is  crossed  on  the  same 
level  by  the  track  of  the  railway,  the  boards  to  be  elevated  so 
as  not  to  obstruct  travel,  and  on  each  side  of  said  boards  there 
shall  be  printed  in  large  letters,  easily  to  l>e  seen  by  the  traveler, 
the  words  '•  Railroad  Crossing — L<x>kout  for  the  Cars."  Said' 
boards  need  not  be  put  up  at  the  crossing  of  streets  and  alleys 
in  cities,  towns,  and  villages,  but  such  railroad  company  shall 
be  subject  to  such  proper  regulations  made  by  municipal  au- 
thorities, in  pursuance  of  general  municipal  powers  regulating 
speed,  passage,  and  flagman  in  such  municipalities  and  at  cross- 
ings; and  when  there  are  sidings  and  switches,  the  whistle  shall 
always  be  blown  at  a  distance  of  not  less  than  two  hundred  and 
fifty  yards  from  every  crossing  of  a  public  road.  When  land 
on  both  sides  of  the  track  is  owned  by  the  same  proprietor, 
convenient  crossings  shall  be  made  and  kept  up  at  the  expense 
of  the  corporation  for  the  use  of  said  proprietor,  and  all  neces- 
sary cow-gaps  made. 

SEC.  36.  Regulations  for  running  trains;  fare  must  be  paid. 

—The  board  of  directors  shall  fix  the  regular  times  for  the 
running  of  trains  for  the  transportation  of  passengers  and 
property,  and  shall  furnish  sufficient  accommodation  for  the 
safe,  comfortable,  and  convenient  transportation,  and  shall  take, 
transport,  and  discharge  such  passengers  and  property  at,  from, 
and  to  such  places  on  the  due  payment  of  freights,  tolls,  and 
fare  legally  authorized  to  be  charged  therefor,  and  in  case  of 
the  refusal  of  said  corporation,  their  officers  or  agents,  to  take 
and  transport  any  passenger,  or  to  deliver  the  same,  or  either 
of  them,  at  the  regular  and  appointed  time,  such  cor|x>ration 
shall  pay  to  the  party  aggrieved  all  damages  thereby  suffered, 
with  costs  of  suit.  If  any  passenger  refuse  to  pay  his  toll  or 
fare,  the  conductor  may  put  him  off  the  cars  at  any  station  or 
convenient  point  where  said  passenger  can  step  on  land. 

SEC.  37.  Prohibited  contracts;  must  receive  freight  from 

Other  roads. — The  corporation  shall  make  no  contract  giving 
any  person  a  preference  in  the  speedy  shipment  of  freights. 

14 


210  ORIGINAL    CHARTER    OF    BON    AIR    BRANCH 

This  corporation  shall  receive  on  their  road  full  freighted  cars 
from  other  roads,  and  transport  them,  without  breaking  bulk, 
to  the  place  of  destination,  charging  for  the  goods,  wares,  and 
merchandise  therein  no  greater  rate  of  freight  than  is  charged 
for  similar  goods,  wares,  and  merchandise  in  their  own  cars, 
and  return  said  cars  free  of  charge;  Provided,  The  cars  thus  to 
be  received  are  good  and  substantial;  And  also  provided^  The 
distance  said  wares  and  merchandise  are  to  be  transported  is  not 
less  than  twenty  miles. 

SEC.  38.  Officers  and  directors,  capital  stock,  shares, 

books. — The  said  five  or  more  corporators  shall,  within  a  con- 
venient time  after  the  registration  of  this  charter  in  the  office  of 
the  secretary  of  state,  select  from  their  number  a  president, 
secretary,  and  treasurer,  or  the  last  two  offices  may  be  com- 
bined into  one,  and  shall  not  necessarily  be  stockholders,  said 
president  and  the  other  corporators  to  constitute  the  first  board  of 
directors.  The  board  of  directors  may  fix  the  amount  of  capital 
stock  of  the  company  and  the  number  of  shares  into  which  the 
same  may  be  divided,  and  under  their  direction  subscription 
books  may  be  opened  to  obtain  stock,  all  other  persons  having 
an  equal  right  with  said  original  corporators  to  subscribe  for 
stock  until  the  full  amount  of  said  capital  stock  is  subscribed. 
When  a  sufficient  amount  of  stock  is  subscribed,  notice,  per- 
sonal or  by  advertisement  in  a  newspaper  where  the  principal 
office  of  the  corporation  is  to  be  kept,  is  to  be  given  of  the 
time  and  place  of  an  election  of  officers.  The  result  of  all  elec- 
tions is  to  be  determined  by  a  majority  of  the  votes  cast,  each 
share  to  represent  one  vote. 

SEC.  39.  Directors  may  increase  Capital. — The  board  of  di- 
rectors may  at  any  time  increase  the  capital  stock,  if  the  necessi- 
ties of  the  corporation,  in  their  estimation,  require  said  increase. 

SEC.  40.  May  enter  upon  private  lands.— The  company,  by 

its  officers  or  agents,  may  enter  upon  the  lands  of  private  per- 
sons for  the  purpose  of  making  surveys,  estimates,  and  location 
of  route. 

SEC.  41.  Shares  of  stock  personalty. — The  stock  is  to  be 

impressed  with  the  character  of  personal  property. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         211 

We,  the  undersigned,  apply  to  the  State  of  Tennessee,  by 
virtue  of  the  law  of  the  land,  for  a  charter  of  incorporation  for 
the  purposes  and  with  the  powers,  etc. ,  declared  in  the  forego- 
ing instrument. 

Witness  our  hands,  this  twenty-first  day  of  November,  1887. 

W.    C.     DlBRELL, 

J.   W.  THOMAS, 
G.  M.  FoG(j, 
J.   H.   AMBROSE, 
L.   L.   LOSEY. 

The  above  charter  was  properly  acknowledged  and  registered  in"  the 
register's  office  of  White  county,  in  book  28,  page  388,  et  K&I.,  and  in  the 
secretary  of  state's  office,  in  book  "  S, "  page  5. 


CHAPTER  XIV. 

DEED  TO  BON  AIR  RAILROAD,  FRANCHISES,  ETC. 

BON  AIR  RAILROAD  COMPANY,  j 

TO — Deed. 
NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY.  ) 

For  and  in  consideration  of  the  sum  of  five  dollars  to  it  in 
hand  paid  by  the  Nashville,  Chattanooga  &  St.  Louis  Railway, 
and  in  consideration  of  the  covenants  and  agreements  herein- 
after set  out,  to  be  done  and  performed  by  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway,  and  in  pursuance  of  resolutions 
adopted  by  the  stockholders  of  the  Bon  Air  Railway,  author- 
izing the  same  and  directing  the  directors  of  this  company  to 
muke  a  sale  and  execute  a  conveyance  of  its  projwrties,  as  here- 
inafter described,  which  resolutions  are  in  the  following  words 
and  figures,  to  wit: 

"Resolved  by  tlw  stockholders  of  tln>  Bon  Air  Railway  in  con- 
vention assembled,  That  the  president  IK?,  and  he  is  hereby,  au- 
thorized, empowered,  and  directed  to  sell  to  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  all  the  property,  rights, 


212  DEED    TO,    FRANCHISES,    ETC.,    BON    AIR    BRANCH 

privileges,  and  franchises  of  the  Bon  Air  Railway,  in  consider- 
ation of  the  Nashville,  Chattanooga  &  St.  Louis  Railway  agree- 
ing to  complete  the  railroad  from  Sparta  to  Bon  Air,  White 
county,  Tennessee,  and  to  pay  the  entire  cost  of  the  construc- 
tion of  the  same;  and  he  is  further  authorized,  empowered,  and 
directed  to  execute  such  instruments  as  may  be  necessary  for  the 
full  conveyance  of  the  railway  aforesaid,  its  franchises,  etc." 

And  in  further  pursuance  of  resolutions  of  the  directors  di- 
recting the  president  of  this  company  to  execute  these  convey- 
ances, the  Bon  Air  Railway,  a  corporation  chartered  and  or- 
ganized under  the  laws  of  the  State  of  Tennessee,  has  bargained 
and  sold,  and  by  these  presents  does  transfer  and  convey,  unto 
the  said  Nashville,  Chattanooga  &  St.  Louis  Railway  and  its 
successors  and  assigns,  all  and  singular  its  railroad,  extending 
from  Sparta,  in  White  county,  in  a  southeasterly  direction,  to 
Bon  Air,  in  said  county,  being  a  standard  gauge  railroad  six 
miles  and  a  half  in  length,  together  with  its  roadbed,  rights  of 
way,  sidings,  depots,  depot  grounds,  and  all  of  its  appurtenances, 
F  a.  chi  es  emoluments,  franchises,  immunities  of  every  kind 
etc.,  pass.  an(j  nature  whatsoever,  together  with  all  the  rights 
under  the  charter  to  extend  the  road  to  the  Kentucky  line,  and 
to  build  branches  thereof,  and  in  consideration  of  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  having  assumed  and  paid  off 
the  sum  of  dollars,  beinsj  the  cost  of  construction  of 

*  o 

the  said  railroad  and  moneys  expended  for  the  right  of  way 
and  otherwise  upon  said  plant  by  the  conveyor,  and  having 
paid  off  and  discharged  the  same  in  full  and  relieved  this  con- 
veyor of  all  liabilities  therefor. 

To  have  and  to  hold  the  said  line  of  railway,  roadbed,  right 
of  way,  sidings,  depots,  depot  grounds,  franchises,  immunities, 
etc.,  with  all  of  its  appurtenances,  estate,  title,  and  interest 
thereto  belonging,  to  the  said  Nashville,  Chattanooga  &  St. 
Louis  Railway,  its  successors  and  assigns,  forever. 

And  the  said  Bon  Air  Railway  does  covenant  with  the  said 
Nashville,  Chattanooga  &  St.  Louis  Railway  that  it  is  lawfully 
seized  and  possessed  of  said  railroad  and  properties  in  fee  sim- 
ple, has  a  good  right  to  convey  it,  and  the  same  is  unincum- 


NASHVILLE,    CHATTANOOGA    &    ST.     LOUIS    RAILWAY.          213 

bered;  and  it  does  further  covenant  and  bind  itself  and  its  suc- 
cessors to  warrant  and  forever  defend  the  title  to  said  railroad 
and  proj>erties  to  the  said  Nashville,  Chattanooga  &  St.  Louis 
Railway,  its  successors  and  assigns,  against  the  lawful  claims  of 
all  persons  whomsoever.  In  witness  whereof,  the  said  Bon 
Air  Railway  has  caused  its  president  and  secretary  to  affix  its 
corporate  name  and  seal  hereto,  this  the  third  day  of  Decem- 
ber, 1887.  BON  AIR  RAILWAY, 
L.  L.  LOSEY,  Sec.  By  J.  H.  AMBROSE,  President. 

This  deed  was  properly  acknowledged  and  registered  in  the  register's 
office  of  White  county,  in  book,  vol.  31,  pp.  77-79. 


214       ABSTRACT    OF    TITLE    HUNTSVILLB    &    ELORA    BRANCH 


CHAPTER  XV. 

HUNTSVILLE  &  ELORA  RAILROAD  COMPANY. 
[HUNTSVILL.E  &  ELORA  BRANCH.] 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— On  October  28,  188T,  the  Huntsville  &  Elora  Railroad 
Company,  pursuant  to  a  resolution  of  its  stockholders  and  di- 
rectors, executed  a  deed  to  its  railroad,  sidings,  depots,  right 
of  way,  franchises,  etc.,  to  the  Nashville,  Chattanooga  &  St. 
Louis  Railway.  At  the  date  of  sale,  the  road  had  not  been  con- 
structed, and  only  partially  graded.  The  consideration  was  an 
agreement  on  the  part  of  the  vendee  company  to  complete  and 
operate  the  road  from  Huntsville  to  Elora  as  a  standard  gauge, 
which  was  done.  The  deed  to  the  same  is  recorded  in  the  judge 
of  probate  court's  office  in  Alabama,  deed  N.  N.  N.,  p.  581. 
It  is  also  inserted  herein  in  next  chapter. 

This  sale  was  legal.  Under  sec.  24  of  its  charter,  the  Huntsville  & 
Elora  Railroad  Company  was  given  the  power  to  sell  its  road,  franchises, 
easements,  immunities,  etc.,  to  any  other  corporation,  whether  char- 
tered by  the  laws  of  Alabama  or  not.  The  Nashville,  Chattanooga  &  St. 
Louis  Railway  had  the  right  to  make  the  purchase  under  Acts  Tenn., 
1871.  ch.  69;  Shannon's  code,  §1509;  M.  &  V.,  §1250. 

What  franchises,  etc.,  passed  under  this  sale.— in  addition 

to  the  road  and  other  property  conveyed,  the  deed  specifically 
transferred  all  the  easements,  franchises,  rights,  privileges,  and 
immunities  contained  in  the  charter  of  the  Huntsville  &  Elora 
Railroad  Company.  For  particular  enumeration  of  these  rights, 
franchises,  etc.,  see  charter  further  on  in  this  chapter. 

Width  Of  right  Of  way. — Section  16  of  the  charter  of  the 
Huntsville  &  Elora  Railroad  Company  gives  one  hundred  feet 
on  each  side  of  the  center  of  said  road  as  a  right  of  way,  in  the 
absence  of  any  contract  with  the  original  landowner  to  the  con- 
trary, where  he  fails  to  apply  in  time  for  assessment.  This 


NASHVILLE,    CHATTANOOGA    &    8T.    LOUIS    RAILWAY.          215 

section  is  the  same  as  section  25  of  the  charter  of  the  Nashville, 
Chattanooga  &  St.  Louis  Railway.  See  notes  thereunder. 

For  discussion  of  this  and  kindred  subjects,  tog-ether  with  the  riffht 
and  method  of  taking  more  than  one  hundred  feet  on  each  side  of  the 
center  of  the  road,  when  necessary  for  railroad  purposes,  see  l-'.mim  nt 
Domain,  Itlyht  of  Way,  herein.  Refer  to  index. 

Where  Huntsville  &  Elora  Railroad  Company  incorporated. 

—The  Huntsville  <fe  Elora  Railroad  Company  was  chartered  by 
Acts  Ala.,  1886-87,  No.  163,  p.  289.  It  was  never  chartered 
in  Tennessee.  The  road  from  the  Alabama  state  line  to  Elora, 
Tennessee,  was  built  under  the  original  charter  of  the  Win- 
chester &  Alabama  Railroad  Company.  See  p.  152,  herein. 

Distance  built  When  purchased. — None  of  the  road  was  built 
when  purchased  by  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  though  the  right  of  way  had  been  secured  and  the 
same  mostly  graded.  The  road  from  Huntsville,  through  the 
counties  of  Madison,  Marshall,  and  Etowah,  to  Attalla  and 
Gadsden,  was  authorized  by  Acts  Ala.,  1890-91,  p.  15-i,  ap- 
proved December  10,  1890,  though  most  of  that  extension  was 
built  under  the  charter  of  the  Tennessee  &  Coosa  Railroad  after 
its  purchase  by  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way. See  charter  of  Tennessee  &  Coosa  Railroad  Company. 
Refer  to  index. 

ORIGINAL   CHARTER   OF   THE   HUNTSVILLE   & 
ELORA  RAILROAD  COMPANY. 

(Acts  Ala.,  1886-7,  No.  163,  p.  289.) 

SECTION  1.  Incorporation,  name,  general  powers.—/?*?  it 

enacted  by  the  Generdd  Assembly  of  Alabama,  That  for  the  pur- 
pose of  building  a  railroad  l>etween  Elora,  Tenn.,  and  Hunts- 
ville, Ala.,  the  formation  of  a  company  is  hereby  authorized, 
which,  when  formed,  shall  1x3  a  body  corporate,  by  the  name 
and  style  of  the  Huntsville  &  Elora  Railroad  Company,  and  by 
said  corporate  name  shall  be  capable  in  law  to  buy,  receive  by 
gift,  hold,  sell,  and  convey  real  and  personal  estate,  as  herein- 
after provided;  make  contracts,  sue  and  be  sued,  make  by-laws, 
and  do  all  legal  acts  properly  incident  to  a  corj>oration  necessary 
and  proper  to  the  transaction  of  the  business  for  which  it  is  in- 


216        ORIGINAL    CHARTER    HUNTSVILLE    &    ELORA    BRANCH 

corporated,  and  to  have  and  use  a  common  seal,  and  the  same 
to  alter  and  destroy  at  pleasure,  and  shall  have  perpetual  suc- 
cession of  members. 

1.  By  Acts  Ala.,  1888-9,  p.  443,  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  was  granted  all  the  rights,  privileges,  and  immunities,  and  sub- 
jected to  all  restrictions,  as  were  granted  by  the  act  incorporating  the 
same,  as  far  as  this  road  lies  within  the  county  of  Madison.     See  act  itself 
in  next  chapter. 

2.  For  rights,  privileges,  etc.,  of  Nashville,  Chattanooga  &  St.  Louis 
Railway  see  ch.  1,  herein. 

SEC.  2.  Capital,  books  opened,  commissioners.— That  the 

capital  stock  of  this  company  may  be  fixed  by  its  shareholders 
at  any  sum  not  to  exceed  "two  hundred  and  fifty  thousand  dol- 
lars," and  that  Oscar  R.  Hundley,  Lawrence  Cooper,  Benj. 
P.  Hunt,  M.  J.  O'Shaughnessy,  John  W.  Thomas,  G.  M.  Fogg, 
Milton  Humes,  and  Robert  L.  Pulley,  be,  and  they  are  hereby, 
appointed  commissioners  to  open  books  for  the  subscription  to 
the  stock  of  the  company,  at  Huntsville,  Ala.,  and  that  said 
commissioners,  or  any  three  thereof,  shall  receive  subscriptions 
for  the  stock  of  said  company,  on  and  from  the  passage  of  this 
act,  to  the  first  day  of  January,  1888,  or  until  five  thousand 
dollars  shall  have  been  subscribed. 

SEC.  3.  Money  deposited ;  incorporation,  directors,  powers 

Of. — As  soon  as  said  sum  of  five  thousand  dollars  shall  have 
been  subscribed,  the  said  commissioners  shall  place  the  money 
so  received  by  them  in  such  bank  at  Huntsville,  Alabama,  to 
the  credit  of  the  company  hereby  incorporated,  subject  to  the 
order  of  the  president  and  directors  of  said  company.  The 
Board  of  sa^  Oscar  R.  Hundley,  Lawrence  Cooper,  Benj.  P. 
directors.  Hunt?  M  j  Q' Shaughnessy , 'John  W.  Thomas,  G. 
M.  Fogg,  Milton  Humes,  and  Robert  L.  Pulley  shall  be,  and 
are  hereby,  constituted  a  board  of  directors  of  said  company 
for  the  first  twelve  months  after  the  passage  of  this  act,  and 
until  a  meeting  of  the  stockholders  of  said  company  shall  be 
had  as  hereinafter  provided;  and  that  the  subscribers  to  said 
stock,  and  said  board  of  directors,  shall  form  a  body  politic 
and  corporate  in  deed  and  in  law  and  by  the  name  and  for  the 
purpose  aforesaid,  and  in  all  things  to  be  represented  by  the 
board  of  directors  aforesaid  until  the  election  of  a  board  as 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         217 

hereinafter  prescribed;  and  they  shall  have  the  jx>wer  to  elect 
the  president  and  officers  of  gaid  company,  and  enact  such  rules, 
regulations,  and  by-laws  which  may  be  necessary  for  the  gov- 
ernment thereof  and  the  transaction  of  its  business. 

See  notes  to  sec.  8  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  4.  Board  Of  directors,  president.— The  affairs  of  said 
company  shall  be  managed  by  the  board  of  directors,  consisting 
of  seven,  who  shall  be  chosen  by  the  stockholders  from  their 
own  body,  and  a  president  of  the  company  shall  be  elected  by 
the  directors  from  among  their  own  members,  in  such  manner 
as  the  regulations  of  the  corporation  shall  prescribe. 

SEC.  5.  Directors  to  hold  over;  elections.— Should  the  day  of 

annual  election  pass  away  without  any  election  of  directors,  the 
corporation  shall  not  thereby  be  dissolved,  but  it  shall  be  lawful 
on  any  other  day  to  hold  and  make  such  election,  in  such  man- 
ner as  may  l>e  prescribed  by  a  by-law  of  the  corporation. 

The  directors  of  the  entire  system  of  which  this  road  now  forms  a 
part,  are  elected  under  the  charter  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway.  See  ch.  1,  herein. 

SEC.  6.   Vacancies  in  board,  how  filled;   president  pro 

tem pore  — The  board  of  directors  may  till  up  all  vacancies 
which  may  occur  in  it  during  the  period  for  which  their  board 
shall  have  been  elected;  and  in  the  absence  of  the  president, 
may  fill  his  place  by  electing  a  president  pro  tempore. 

See  sec.  10  of  charter  of  Nashville,  Chattanooga  &  St.  Louis  Railway, 
ch.  1,  herein. 

SEC.  7.  Contracts  binding  without  seal.— All  contracts  and 

agreements  authenticated  by  the  president  of  the  board  shall 
be  binding  on  the  company  without  seal,  or  in  such  other  mode 
of  authentication  may  be  used  as  the  company,  by  their  by- 
laws, may  adopt. 

See  notes  to  sec.  11  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  8.  Exclusive  transportation;    rate  of  charge.— The 

company  shall  have  the  exclusive  right  of  transportation  or 
conveyance  of  persons,  goods,  merchandise,  and  produce  over 
the  said  railroad  by  them  constructed ;  J^rovided,  That  the 


218        ORIGINAL    CHARTER    HUNTSVILLE    &    ELORA    BRANCH 

charge  of  transportation  or  conveyance  shall  not  exceed  thirty  - 
live  cents  per  one  hundred  pounds  on  heavy  articles,  and  ten 
cents  per  cubic  foot  on  articles  of  measurement  for  every  one 
hundred  miles,  and  five  cents  per  mile  for  every  passenger; 
And  provided  also,  That  the  said  company  may,  when  they 
see  fit,  farm  out  their  rights  of  transportation  on  said  road, 
subject  to  the  rates  above  mentioned. 

See  notes  to  sec.  14  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  9.  StOCk,  hOW  transferred. — The  stock  of  said  com- 
pany may  be  transferred  in  such  manner  and  form  as  may  be 
directed  by  the  by-laws  of  the  said  corporation. 

See  notes  to  sec.  16  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  10.  Capital  increased,  hOW. — The  said  company  may  at 
any  time  increase  its  capital  to  a  sum  sufficient  to  complete  the 
said  road  and  to  stock  it  with  everything  necessary  to  give  it  full 
operation  and  effect,  either  by  opening  books  for  new  stock  or 
by  selling  such  new  stock,  or  by  borrowing  money  on  the 
credit  of  the  company,  and  on  the  mortgage  of  its  charter  and 
works;  and  the  manner  in  which  the  same  shall  be  done  in  either 
case  shall  be  prescribed  by  the  stockholders  at  a  general  meet- 
ing; and  any  state,  or  any  citizen,  corporation,  or  company  of 
this  or  any  other  state  or  country,  may  subscribe  for  and  hold 
stock  in  said  company,  with  all  the  rights  and  subject  to  all  the 
liabilities  of  any  other  stockholder. 

See  notes  to  sec.  17  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1  herein. 

SEC.  11.  Directors'  annual  report;  may  call  general  meet- 
ings.— The  board  of  directors  shall,  in  every  year  at  least, 
make  a  full  report  of  the  state  of  the  company  and  its  affairs 
to  a  general  meeting  of  the  stockholders,  and  oftener,  if  di- 
rected by  a  by-law,  and  shall  have  power  to  call  a  general  meet- 
ing of  the  stockholders  when  the  board  may  deem  it  expedient. 

See  notes  to  sees.  18  and  9  of  charter  of  Nashville,  Chattanooga  & 
St.  Louis  Railway,  ch.  1,  herein. 

SEC.  12.  Method  and  scale  of  voting;  value  of  shares.— 

The  stockholders  may  vote  in  person  or  by  proxy,  and  in  the 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         219 

election  of  directors,  and  on  voting  on  all  questions  which  come 
before  the  meeting  of  the  stockholders,  or  which  may  be  sub- 
mitted to  the  decision  of  the  stockholders  in  any  other  manner, 
each  stockholder  shall  have  the  right  to  cast  one  vote  for  each 
share  of  stock  held  by  him.  Shares  of  stock  shall  be  one  hun- 
dred dollars  each. 

See  notes  to  sec.  20  of  charter  of  Nashville,  Chattanooga  &  St.  I.-mi- 
Railway,  eh.  1,  herein. 

SEC.  13.  Real  property  may  be  purchased,  for  what.— The 

said  company  may  purchase,  have,  and  hold  in  fee,  or  for  a 
term  of  years,  any  lands,  tenements,  hereditaments  which  may 
be  necessary  for  said  road  or  appurtenances  thereof,  or  for  the 
erection  of  depositories,  storehouses,  houses  for  the  officers, 
servants,  or  agents  for  the  company,  or  for  workshops  or  foun- 
dries to  be  used  for  the  said  company,  or  for  producing  timber, 
stone  or  other  material  necessary  for  the  construction  of  the 
road  or  its  appurtenances,  or  for  effecting  transportation 
thereon. 

See  notes  to  sec.  21  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  u.  Crossing  roads  and  water  courses.— The  said  com- 
pany shall  have  the  right,  when  necessary,  to  construct  the 
road,  or  any  branch  thereof,  across  or  along  any  public  road 
or  water  course;  Provided,  That  the  said  road  and  the  naviga- 
tion of  such  water  course  shall  not  be  thereby  obstructed. 

See  notes  to  sec.  22  of  charter  of  Nashville,  Chattanooga  «fc  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  15.  Condemnation  for  right  of  way. — When  any  land 

or  right  of  way  may  be  required  by  the  said  company  for  the 
purpose  of  constructing  their  road,  and,  for  want  of  agreement 
as  to  the  value  thereof,  or  for  any  other  cause,  the  same  can- 
not be  purchased  from  the  owner  or  owners,  the  same  may  be 
taken  at  a  valuation  to  be  made  by  five  commissioners,  or  a 
majority  of  them,  to  be  appointed  by  the  probate  court  of  the 
county  where  some  part  of  the  land  or  right  of  way  is  situated, 
and  the  said  commissioners,  before  they  act,  shall  severally 
take  an  oath  before  some  justice  of  the  j>eace  faithfully  and  ira- 


220        ORIGINAL    CHARTER    HUNTSVILLE    <fe    ELORA    BRANCH 

partially  to  discharge  the  duty  assigned  to  them.  In  making 
the  said  valuation  the  commissioners  shall  take  into  considera- 
tion the  loss  or  damage  which  may  occur  to  the  owner  or 
owners  in  consequence  of  the  land  being  taken  or  the  right  of 
way  surrendered,  and  also  the  benefit  and  advantage  he,  she, 
or  they  may  receive  from  the  erection  or  establishment  of  the 
railroad  or  works,  and  shall  state  particularly  the  nature  and 
amount  of  each,  and  the  excess  of  loss  and  damage  over  and 
above  the  benefit  and  advantage  shall  form  the  measure  of 
valuation  of  the  said  land  or  right  of  way.  The  proceedings 
of  the  said  commissioners,  accompanied  with  a  full  description 
of  the  said  land  or  right  of  way,  shall  be  returned  under  the 
hands  and  seals  of  a  majority  of  the  commissioners  to  the 
court  from  which  the  commission  issued,  there  to  remain  on 
record.  In  case  either  party  to  the  proceedings  shall  appeal 
from  the  valuation  to  the  next  session  of  the  court 
granting  the  commission  and  give  reasonable  notice 
to  the  opposite  party  of  such  appeal,  the  court  shall  order  a 
new  valuation  to  be  made  by  a  jury,  who  shall  be  charged 
therewith  in  the  same  term,  or  as  soon  as  practicable,  and  their 
verdict  shall  be  final  and  conclusive  between  the  parties,  unless 
a  new  trial  shall  be  granted,  and  the  land  or  right  of  way  so 
valued  by  the  commissioners  or  jury  shall  vest  in  the  said  com- 
pany in  fee  simple  so  soon  as  the  valuation  may  be  paid,  or, 
when  refused,  may  be  tendered.  When  there  may  be  an  ap- 
peal as  aforesaid  from  the  valuation  of  commissioners  by  either 
of  the  parties,  the  same  shall  not  prevent  the  works  intended 
to  be  constructed  from  proceeding,  but  when  the  appeal  is  by 
the  company  requiring  the  surrender,  they  shall  be  at  liberty 

to   proceed  in  their  works  only  on  condition,  by 
Appeal  bonds.        .    .  , 

giving  to   the  opposite   party  a    bond,   with   good 

security,  to  be  approved  by  the  clerk  of  the  court,  when  the 
valuation  is  returned  in  a  penalty  equal  to  double  the  said 
valuation,  conditioned  for  the  payment  of  said  valuation  and 
interest,  in  case  the  same  be  sustained,  and,  in  case  it  be  re- 
versed, for  the  payment  of  the  valuation  thereafter  to  be  made 
by  the  jury  and  confirmed  by  the  court;  Provided,  That  when 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         221 

the  hind  cannot  be  had  by  gift  or  purchase,  the  Gyrations  of 
the  work  are  not  to  he  hindered  or  delayed  during  the  |>endency 
of  any  proceedings  to  assess  its  value  as  aforesaid,  nor  shall 
any  injunction  or  supersedeas  be  awarded  by  any  judge  or  court 
to  delay  the  progress  of  said  work. 

For  full  discussion  of  this  section,  see  notes  to  section  24  of  the  char- 
ter of  Nashville,  Chattanooga  &  St.  Louis  Railway,  chapter  1,  herein. 

SEC.  16.  In  absence  of  contract,  right  of  way  one  hundred 

feet,  When. — In  the  absence  of  any  contract  with  the  said  com- 
pany in  relation  to  land  through  which  the  said  road  may  pass, 
signed  by  the  owner  thereof,  or  by  his  agent,  or  claimant  or 
person  in  possession  thereof,  which  may  be  continued  by  the 
owner,  it  shall  be  presumed  that  the  land  upon  which  the  said 
road  may  be  constructed,  together  with  a  space  of  one  hundred 
feet  on  each  side  of  the  center  of  said  road,  has  been  granted 
to  the  company  by  the  owner  thereof,  and  the  company  shall 
have  good  right  and  title  thereto,  and  shall  have,  hold,  and 
enjoy  the  same  as  long  as  the  same  be  used  only  for  the  pur- 
poses of  the  road,  and  no  longer,  unless  the  })erson  or  persons 
owning  the  said  land  at  the  time  that  part  of  the  road  which 
may  be  on  said  land  was  finished,  or  those  claiming  under  him, 
her,  or  them,  shall  apply  for  an  assessment  for  the  valuation 
of  said  lands,  as  hereinbefore  directed,  within  tive  years  next 
after  that  part  of  said  road  was  finished.  And,  in  case  the  said 
owner  or  owners,  or  those  claiming  under  him,  her,  or  them, 
shall  not  apply  for  such  assessment  within  five  years  When  claiins 
next  after  the  said  part  was  finished,  he,  she,  or  they  are  barred- 
shall  be  forever  barred  from  recovering  the  said  land  or  hav- 
ing any  assessment  or  compensation  therefor,  provided  nothing 
herein  contained  shall  affect  the  right  of  feme*  covert  or  in- 
fants until  two  years  after  the  removal  of  their  respective  dis- 
abilities. 

See  notes  to  sec.  25  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  17.  Obstructing  or  damaging  road,  bridge,  or  vehicle; 

punishment. — If  any  jwrson  shall  willfully  and  maliciously  de- 
stroy, or  in  any  manner  hurt,  damage,  or  obstruct  the  said 


222        ORIGINAL    CHARTER    HUNTSVILLE    &    ELORA    BRANCH 

railroad,  or  any  bridge,  or  any  vehicle  used  for  or  in  the  trans- 
portation thereon,  such  person  or  persons  so  offending  shall  be 
liable  to  be  indicted  therefor,  and,  on  conviction,  shall  be  im- 
prisoned not  more  than  six  months  nor  less  than  one  month, 
and  pay  a  fine  of  not  less  than  twenty  dollars,  and  shall  be  fur- 
ther liable  to  pay  all  the  expenses  of  repairing  the  same;  and 
it  shall  not  be  competent  for  any  person  so  offending  against 
the  provisions  of  this  clause  to  defend  himself  by  pleading  or 
giving  in  evidence  that  he  was  the  owner,  or  agent  or  servant 
of  the  owner,  of  the  land  when  such  destruction,  hurt,  damage, 
injury,  or  obstruction  was  done,  at  the  time  the  same  was 
caused  or  done. 

See  notes  to  sec.  27  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  18.  Obstruction  a  public  nuisance.— Every  obstruction 
to  the  safe  and  free  passage  of  vehicles  on  the  said  road  shall 
be  deemed  a  public  nuisance,  and  may  be  abated  as  such  by  an 
officer,  agent,  or  servant  of  the  company,  and  the  person  caus- 
ing such  obstruction  may  be  indicted  and  punished  for  erecting 
a  public  nuisance. 

See  notes  to  sec.  28  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  19.  Storage  Charges  allowed,  When.— The  said  com- 
pany shall  have  the  right  to  take  at  the  storehouses  they  may 
establish  or  annex  to  their  railroad,  all  goods,  wares,  merchan- 
dise, and  produce  intended  for  transportation,  prescribe  the 
rules,  priority,  and  charge  and  receive  such  just  and  reasonable 
compensation  for  storage  as  they,  by  rules,  may  establish  (which 
they  shall  cause  to  be  published),  or  as  may  be  fixed  by  agree- 
ment with  the  owner,  which  may  be  distinct  from  the  rates  of 
transportation;  Provided,  That  the  said  company  shall  not 
charge  or  receive  storage  on  goods,  wares,  merchandise,  or 
produce  which  may  be  delivered  to  them  at  their  regular  de- 
positories for  immediate  transportation,  and  which  the  company 
may  have  the  power  of  transporting  immediately. 

See  notes  to  sec.  29  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 


NASHVILLE,    CHATTANOOGA    4    8T.     LOUIS    RAILWAY.          223 

SEC.  20.  Crossings  Of  roads  and  lands.— Whenever,  in  the 
construction  of  said  road,  it  shall  be  necessary  to  cross  or  in- 
tersect any  established  road  or  way,  it  shall  be  the  duty  of  the 
company  to  construct  said  road  across  such  established  road  or 
way  so  as  not  to  impede  the  passage  or  transportation  of  per- 
sons or  projHjrty  along  the  same,  or  when  it  shall  be  necessary 
to  pass  through  the  land  of  any  individual,  it  shall  be  their 
duty  to  provide  for  such  individual  a  proper  wagon  way  or 
ways  across  said  road  from  one  part  of  his  land  to  the  other. 

See  notes  to  sec.  32  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  21.  Additional  powers. — The  said  company  shall  pos- 
sess such  additional  powers  as  may  be  convenient  for  the  due 
and  successful  execution  of  the  powers  granted  in  this  charter, 
and  for  the  successful  construction  and  management  of  the  work. 

.  See  notes  to  sec.  33  of  charter  of  Nashville,  Chattanooga  «fe  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  22.  Charter,  hOW  amended. — This  charter  shall  be 
amendable,  from  time  to  time,  by  the  legislature,  whenever  the 
president  and  directors  shall  unanimously  petition  for  amend- 
ments, specifying  in  the  j>etition  the  nature  of  such  amend- 
ments; and  when  such  amendments  shall  be  adopted  by  the 
legislature,  and  submitted  to  the  directory,  and  be  accepted 
and  adopted  unanimously  by  the  president  and  directors,  they 
shall  be  obligatory  on  the  stockholders,  and  not  otherwise. 

See  notes  to  sec.  34  of  charter  of  Nashville,  Chattanooga  &  St.  Louis 
Railway,  ch.  1,  herein. 

SEC.  23.  Road  to  commence  and  be  completed,  when.— The 

railroad  authorized  by  this  act  shall  be  commenced  within  six 
months  after  the  passage  of  this  act,  and  shall  l>e  finished 
within  two  years  thereafter;  otherwise  the  charter  hereby 
granted  shall  be  void. 

SEC.  24.  May  dispose  of  road,  franchises,  etc.— Be  it  fur- 
ther enacted,  That  said  company  may  sell,  alien,  and  convey, 
lease  or  farm  out  their  rights  of  transportation  to  said  road, 
their  franchise,  roadbed,  railway,  depots,  rolling  stock,  and 
all  rights,  easements,  and  immunities,  to  any  other  corporation, 


224         DEED  TO  HUNTSVILLE  &  ELORA  BRANCH 

whether  resident  or  nonresident,  whether  incorporated  by  the 
laws  of  Alabama  or  those  of  any  other  state,  upon  a  majority 
of  the  stockholders,  at  a  meeting  to  be  called  by  the  directors 
of  said  company,  upon  five  days'  notice,  authorizing  the  same 
to  be  done,  and  upon  such  authorization  the  president  and 
directors  shall  have  the  power  to  make  such  sale,  lease,  or 
assignment,  and  execute  proper  conveyances  therefor;  and  the 
purchaser  shall  be  entitled  to  all  the  rights,  franchises,  and 
immunities  of  the  corporation  hereby  incorporated  under  this 
act.  (Acts  Ala.,  1886-7,  No.  163,  p.  289;  passed  February 
8,  1887.) 


CHAPTER  XVI. 

% 

DEED  TO  AND  ACTS  RELATING  TO  HUNTSVILLE  &  ELORA 
RAILROAD. 

HUNTSVILLE  &  ELORA  RAILROAD  Co.  ) 

TO — Deed. 
NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY.    ) 

This  indenture,  made  and  entered  into  this  twenty-eighth  day 
of  October,  A.D.  1887,  by  and  between  the  Huntsville  &  Elora 
Railroad  Company,  a  corporation  chartered  and  doing  business 
under  the  laws  of  the  State  of  Alabama,  of  the  first  part,  and 
the  Nashville,  Chattanooga  &  St.  Louis  Railway,  a  corporation 
chartered  and  doing  business  under  the  laws  of  the  State  of 
Tennessee,  of  the  second  part,  witnesseth  that,  for  and  in  con- 
sideration of  the  covenants  and  agreements  hereinafter  set  out, 
to  be  done  and  performed  by  the  party  of  the  second  part,  the 
said  party  of  the  first  part  does  hereby  bargain,  sell,  alien,  and 
convey  unto  the  party  of  the  second  part,  its  successors  and 
assigns,  all  of  its  lines  of  railway,  sidings,  stations,  depots, 

depot  grounds,  rights  of  way,  real  estate,  roadbed, 
chfsesS'etc!?  and  all  of  its  emoluments,  easements,  franchises, 

and  all  rights,  privileges,  and  immunities  held, 
owned,  or  obtained  by  it  under  its  charter  granted  by  the  gen- 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.         225 

eral  assembly  of  the  State  of  Alabama,  on  the  eighth  day  of 
February,  1887,  its  said  lines  of  railway  being  described  as 
follows,  to  wit:  Beginning  at  the  city  of  Huntsville,  in  Madi- 
son county,  State  of  Alabama,  and  running  northeasterly 
through  the  villages  of  Belle  Factory,  New  Market,  and  Plevna, 
in  said  county  and  state,  to  the  village  of  Elora,  a  station  on 
the  Winchester  and  Alabama  branch  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  in  the  county  of  Lincoln,  State  of 
Tennessee,  being  a  distance  of  twenty-six  and  a  half  miles,  more 
or  less,  with  an  average  right  of  way  of  one  hundred  feet,  more 
or  less.  The  said  road  has  only  been  partially  graded  between 
Huntsville  and  Elora. 

To  have  and  to  hold  unto  the  said  Nashville,  Chattanooga  & 
St.  Louis  Hallway,  its  successors  and  assigns,  forever,  all  the 
above  described  property,  together  with  the  tenements,  here- 
ditaments, and  appurtenances  thereto  belonging  or  in  anywise 
appertaining  as  above  described  and  set  forth. 

And  the  said  party  of  the  first  part,  in  consideration  of 
the  premises,  hereby  covenants  that  it  is  seized  and  possessed 
of  said  properties,  and  has  a  full  right  to  convey  the  same, 
and  that  the  title  to  the  same  is  free  and  unincumbered,  except 
as  hereinafter  set  out,  and  it  will  forever  warrant  and  defend 
the  title  hereby  conveyed  from  the  legal  claims  of  all  persons 
whatsoever. 

It  is  understood,  however,  that  certain  rights  of  way  herein 
conveyed  were  made  directly  to  the  party  of  the  second  part 
by  the  consent  of  both  parties  heretofore,  and  it  is  not  intended 
hereby  to  warrant  these  titles;  and  the  party  of  the  second  part, 
in  consideration  of  the  premises,  has  paid  the  party  of  the  first 
part  one  dollar,  the  receipt  whereof  is  hereby  acknowledged  by 
said  party  of  the  first  part,  and  in  further  con-  Consldera. 
sideration  hereby  covenants  to  and  with  the  party  tlon- 
of  the  first  part  to  at  once  complete  the  construction  of  said 
lines  of  railway  from  Huntsville  to  Elora,  as  altove  described, 
making  it  a  standard  gauge  road  of  the  same  gauge  of  said 
party's  main  line,  and  to  complete  and  equip  the  same  as  a 
railway,  and  to  operate  the  same  by  running  freight  and  pas- 
is 


226        ACTS    RELATING    TO    HUNTSVILLE    &    ELORA    BRANCH 

senger  trains  thereon,  and  to  run  at  least  one  through  passenger 
coach  daily  between  Nashville  and  Huntsville,  and  without  un- 
avoidable delay. 

In  witness  whereof  the  said  parties  have  caused  their  proper 
officers  to  affix  their  corporate  names  and  seals  hereto,  the  day 
and  date  first  above  mentioned. 

THE  HUNTSVILLE  &  ELORA  RAILROAD  COMPANY, 

OSCAR  R.  HUNDLEY,  Sec.         By  G.  M.  FOGG,  President. 

The  above  deed  was  properly  acknowledged  and  registered  in  the 
office  of  the  judge  of  probate  court  of  Madison  county,  Alabama,  deed 
N  N  N,  p.  581. 

Rights  and  privileges  granted  Huntsville  &  Elora  Railroad 
through  Madison  County,  Alabama. 

SECTION  1.  That  the  Nashville  &  Chattanooga  Railroad  Com- 
pany be,  and  they  are  hereby,  authorized  to  construct  their 
road  through  the  northern  portion  of  Jackson  county,  in  this 
state,  and  that  they  shall  have  and  enjoy  all  the  rights,  privi- 
leges, and  immunities,  and  be  subject  to  such  restrictions,  as  are 
granted  to  and  imposed  upon  said  company  by  the  act  incor- 
porating the  same,  as  far  as  said  railroad  lies  in  the  county  of 
Jackson,  on  the  express  condition,  however,  that  any  railroad 
company  now  chartered  or  which  may  hereafter  be  chartered 
in  this  state,  shall  have  the  right  to  connect  their  road  directly 
with  the  said  Nashville  &  Chattanooga  Railroad  at  any  point 
on  it  in  the  county  of  Jackson  aforesaid. 

The  above  section  is  set  out,  as  it  is  referred  to  in  the  fourth  section, 
which  relates  to  the  Huntsville  &  Elora  Railroad.  Sections  2  and  3  of 
this  act  have  no  bearing,  and  hence  are  omitted. 

SEC.  4.  Whereas,  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  formerly  the  Nashville  &  Chattanooga  Railroad  Com- 
pany, has  constructed  a  road  from  Elora,  in  the  State  of  Ten- 
nessee, to  Huntsville,  in  the  county  of  Madison,  State  of 
Alabama;  Therefore  be  it  further  enacted  by  the  General  As- 
setnbfy,  That  said  Nashville,  Chattanooga  &  St.  Louis  Railway 
shall  have  and  enjoy  all  the  rights,  privileges,  and  immunities 
granted  in  section  one  of  this  act,  so  far  as  said  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  lies  within  the  county  of  Madison. 
(Acts  Ala.,  1888-89,  p.  443;  approved  February  19,  1889.) 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         227 


CHAPTER   XVII. 

THE  NASHVILLE  <fr  TUSCALOOSA   RAILROAD  COMPANY. 
(CENTREVILLE  BRANCH.) 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— On  July  29,  1880,  a  contract  was  entered  into  between 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  and  the  Nash- 
ville &  Tuscaloosa  Railroad  Company,  by  the  terras  of  which 
the  former  company  agreed  to  extend  the  road  of  the  latter 
company  from  Graham  station  to  a  point  on  the  north  bank  of 
Duck  river,  opposite  Centreville,  Tenn.,  a  distance  of  about 
thirteen  miles.  The  road  from  Dickson  to  Graham  station  had 
already  been  constructed.  In  consideration,  the  Nashville  & 
Tuscaloosa  Railroad  Company  agreed  to  convey  to  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  in  fee  simple,  all  of 
its  railroad  from  Dickson,  Tenn.,  to  Centreville,  Tenn.,  to- 
gether with  all  its  charter  rights,  privileges,  franchises,  equip- 
ments, appurtenances,  etc.  The  road  was  to  be  constructed  as 
a  narrow  gauge  railroad. 

Under  and  by  virtue  of  this  contract,  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  built  the  road  as  provided  therein, 
and,  on  March  13,  1883,  the  Nashville  &  Tuscaloosa  Railroad 
Company  conveyed  to  it,  in  conformity  with  the  agreement 
above  set  out,  all  of  its  railroad,  beginning  at  the  junction  of 
said  road  with  the  Nashville,  Chattanooga  &  St.  Louis  Railway, 
and  extending  in  a  line  to  Centreville,  in  Hickman  county, 
Tenn.,  a  distance  of  about  thirty-four  miles  of  completed  road, 
together  with  all  and  singular  the  appurtenances,  rights,  fran- 
chises, etc.,  thereof,  a  deed  to  which  was  duly  acknowledged 
and  registered  in  the  register's  office  of  Hickman  county,  in 
trust  deed  l>ook  No.  2,  pp.  552-554.  Said  deed  is  also  inserted 
herein.  See  next  chapter. 


228  ABSTRACT   OF   TITLE    TO    CENTRE VILLE    BRANCH 

Under  and  by  virtue  of  the  same  contract,  the  Nashville, 
Chattanooga  &  St  Louis  Railway  subsequently  extended  the 
said  road  from  Centreville  to  a  point  on  the  line  separating 
Lewis  county  from  Hickman  county,  a  distance  of  about  thir- 
teen miles,  and,  on  June  20,  1884,  the  Nashville  &  Tuscaloosa 
Railroad  Company,  in  pursuance  of  said  agreement,  deeded  to 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  that  part  of 
the  road  from  Centreville  to  a  point  on  the  line  separating 
Lewis  county  from  Hickman  county,  a  distance  of  about  thir- 
teen miles,  as  above  explained,  together  with  all  the  rights, 
franchises,  privileges,  appurtenances,  etc.,  appertaining  thereto, 
a  deed  to  which  was  duly  acknowledged  and  registered  in  the 
register's  office  of  Hickman  count v,  in  trust  deed  book  No.  3, 

O  tf  * 

pp.    60-62.      Said    deed   is  also  inserted   herein.      See   next 
chapter. 

1.  This  last  conveyance  reached  a  point  about  a  mile  from  Kimmins, 
in  Lewis  county. 

2.  Road  from  Kimmins  to  Minnie,  on  Allen's  creek. — The  road  from 
Kimmins,    in    Lewis  county,   to   Minnie,  on   Allen's  creek,    in     Wayne 
county,  a  distance  of  eighteen  miles,  was  built  by  the   Southern  Iron 
Company,  and  sold  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
on  the  twenty-fourth  day  of  September,  1892,  a  deed  to  which  is  regis- 
tered in  the  register's  office  of  Lewis  county,  in  book  I,  p.  495;  in  Wayne 
county,  in  book  T,   p.    50.     Said  deed  is  also  inserted  herein  in  next 
chapter. 

3 .  Road  from  Centreville  to  Swan  creek,  in  direction  of  Duck  river 
phosphate  mines. — The  road   from  Centreville  to  Swan   creek,  in  the 
direction  of  the  Duck  river  phosphate  mines,  was  built  by  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  so  as  to  connect  at  Swan  creek  with 
the  road  built  by  the  said  phosphate  company  from  their  mines  to  said 
point.     This  extension  was  made  under  Acts  1895,  ch.  152,  p.  314,  allow- 
ing lateral  roads  to  be  built  to  mines,  quarries,  etc.,  if  not  exceeding 
eight  miles.     The  rails,  etc.,  on  the  road  built  by  the  Duck  River  Phos- 
phate Company  from  their  mines  to  Swan  creek  are  owned  by  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway. 

4.  Gauge  changed,  when. — When  the  above  purchased  roads  were 
secured  they  were  narrow  gauge.     The  Nashville,  Chattanooga  &  St. 
Louis  Railway  subsequently  changed  them  to  broad  gauge  in  June,  1894. 

5.  Legality  of  purchase. — The  purchase  of  the  above  roads  was  legal 
under  the  acts  of  Tennessee,  1871,  ch.  69,  which  superseded  the  acts  of 
1871,  ch.  23. 

6.  Road  from  Lyles  to  Warner. — The  road  from  Lyles  to  Warner  is 
not  owned  by  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  though 
the  rails,  etc.,  on  said  road  are  owned  by  the  Nashville,  Chattanooga  & 
St.  Louis  Railway. 

What  franchises,  etc.,  passed  under  this  sale.— in  addition 

to    the    railroad,    appurtenances,    equipments,    lands,    depots, 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         229 

bridges,  etc.,  therein  conveyed,  the  deeds  sj>ecifically  trans- 
ferred and  conveyed  all  the  rights,  privileges,  and  franchises 
contained  in  the  charter  of  the  said  Nashville  &  Tuscaloosa 
Railroad  Company.  For  the  enumeration  of  said  franchises, 
rights,  etc.,  see  charter  of  Nashville  &  Tuscaloosa  Railroad 
Company  further  on  in  this  chapter,  and  the  deed  from  the 
Southern  Iron  Company  to  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  of  that  part  of  the  road  from  Kimmins  to  Min- 
nie, which  deed  is  set  out  in  the  succeeding  chapter. 

Width  Of  right  Of  way. — The  charter  of  the  Nashville  & 
Tuscaloosa  Railroad  Company  was  granted  under  the  general 
acts  of  the  legislature  of  the  State  of  Tennessee,  as  set  out  in 
Acts  of  1875,  ch.  142,  sec.  6.  In  this  charter  there  is  no  clause 
granting  any  specified  number  of  feet  as  a  right  of  way,  in  the 
absence  of  any  contract  with  the  original  landowner,  as  is  pro- 
vided in  most  of  the  charters  granted  by  xpecial  acts.  Sec.  9 
of  the  charter  provides,  however,  that  the  said  company  shall 
have  the  right  to  appropriate,  as  an  easement,  a  right  of  way 
not  exceeding  two  hundred  feet,  one  hundred  feet  on  each  side 
of  the  center  line  of  said  road,  over  the  land  of  any  person 
through  which  the  line  of  track  may  be  located.  Under  this 
section,  the  Nashville  &  Tuscaloosa  Railroad  Company  could 
have  originally  condemned  any  number  of  feet,  up  to  and  in- 
cluding two  hundred,  for  a  right  of  way.  Whatever  number 
of  feet  was  originally  condemned,  however,  would  now  be 
binding  upon  the  Nashville,  Chattanooga  &  St.  Louis  Railway. 
Should  no  condemnation  have  been  had  at  all,  then  the  entry 
and  construction  of  the  road  would  be  regarded  as  an  uppro- 
pr'udion  of  so  much  of  the  land  as  the  law  authorized,  which  is 
two  hundred  feet,  and  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  as  the  lawful  purchaser  thereof,  would  l>e  entitled  to 
that  numl>er  of  feet.  3  Lea  (Tenn. ),  478.  On  that  part  of 
the  road  from  Kimmins  to  Minnie,  which  was  conveyed  to  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  by  the  Southern 
Iron  Company,  the  right  of  way  is  fifty  feet  on  each  side  of  the 
center  of  the  road,  as  will  appear  from  said  deed,  and  which 
deed  is  set  out  in  the  next  chapter. 


230  ORIGINAL    CHARTER    OF    CENTREVILLE    BRANCH 

1.  It  is  probable  that  the  statute  of  limitations  would  run  against  the 
railway  on  this  line  of  road,  under  the  charter  of  the  Nashville  &  Tusca- 
loosa  Railroad  Company,  if  adjoining  landowner  is  allowed  to  use  and 
occupy  adversely  a  part  of  the  two  hundred  feet.     The  same  is  doubt- 
less true  of  that  part  of  the  road  conveyed  by  the  Southern  Iron  Com- 
pany. 

2.  In  considering  this  question,  however,  regard  must  be  had  to  the 
Acts  of  Tenn.,  1849-50,  ch.  266,  sec.  3,  which  provided  that  all  branches 
of  the  Nashville  &  Chattanooga  Railroad  Company,  as  may  be  made, 
shall  have  all  the  rights  and  privileges  and  be  placed  in  all  respects  on 
the  same  footing,  as  the  Nashville  &  Chattanooga  Railroad  Company. 

3.  For  full  discussion  of  this  subject,  together  with  right  of  taking 
more  than  two  hundred  feet,  see  Eminent  Domain,  herein.  Refer  to 
index. 

ORIGINAL    CHARTER    OF    NASHVILLE    &    TTJS- 
CALOOSA  RAILROAD  COMPANY. 

(Chartered   under   General  Acts   1875,   ch.    142.) 

SECTION  i.  Incorporation,  name,  route,  general  powers.— 

Be  it  known,  That  E.  F.  Falconnet,  L.  S.  Goodrich,  G.  H. 
Nixon,  J.  H.  Moore,  W.  B.  Russell  are  hereby  constituted  a 
body  politic  and  corporate  by  the  name  and  style  of  the  "Nash- 
ville &  Tuscaloosa  Railroad  Company,"  for  the  purpose  of  con- 
structing a  railroad  from  a  point  on  the  Nashville  &  Northwest- 
ern Railway  at  or  near  Burns  Station,  or  at  or  near  any  other 
convenient  station  or  point  on  said  railway,  through  the  town 
of  Centreville,  Hickman  county,  and  through  the  town  of  Law- 
renceburg,  Lawrence  county,  to  a  point  on  the  northern  bound- 
ary of  the  State  of  Alabama  in  the  direction  of  Florence,  North 
Alabama. 

1.  Charter  amended,  may  change  termini. — By  Acts  Tenn.,  1887.  ch. 
39,  sees.  1,  2.  all  railroad  companies  chartered  under  the  general  laws 
were  authorized  to  chauge  either  terminus  before  final  completion.     See 
act  itself  for  method. 

2.  Hy  Acts  1889,  ch.  158,  all  railroad  companies  chartered  under  the 
general  laws   were  allowed  to  build  branch   roads.     See  act  itself  for 
method. 

3.  Hy  Acts  1879,  ch.  156,  p.  199,  it  was  provided  that  the  state  revenue 
collected  and  to  be  collected  in  Hickman  county  for  the  years  1878  and 
1879  should  be  remitted  in  order  that  the  people  could  complete  this 
road  to  Centreville. 

4.  The  charter  of  this  company  was  amended,  as  will  appear  from  the 
secretary  of  state's  office,  so  as  to  enable  the  company  to  increase  its 
capital. 

SEC.  2.  General  powers  (Continued).— The  general  powers 
of  this  corporation  are,  to  sue  and  be  sued  by  the  corporate 


NASHVILLE,    CHATTANOOGA    A    8T.    LOUIS    RAILWAY.         231 

name,  to  have  and  use  a  common  seal,  which  it  may  alter  at 
pleasure;  if  no  common  seal  is  used,  then  the  signature  of  the 
name  of  the  corporation,  by  any  duly  authorized  officer,  shall 
be  legal  and  binding;  to  purchase  and  to  hold  or  receive  by 
gift,  in  addition  to  the  personal  property  owned  by  said  cor- 
poration, any  real  estate  necessary  for  the  transaction  of  the 
corporate  business,  and  also  to  purchase  and  accept  any  real 
estate  in  payment,  or  part  payment,  of  any  debt  due  to  the 
corporation,  and  sell  realty  for  corporation  purposes;  to  estab- 
lish by-laws  and  make  all  rules  and  regulations  not  inconsistent 
with  the  laws  and  the  constitution  deemed  expedient  for  the 
management  of  corporate  affairs;  to  appoint  such  subordinate 
officers  and  agents,  in  addition  to  president  and  secretary  and 
treasurer,  as  the  business  of  the  corporation  may  require,  des- 
ignate the  name  of  the  office  and  fix  the  compensation  of  the 
officers. 

SEC.  3.  Special  provisions. — A  failure  to  elect  officers  at  the 
proper  time  does  not  dissolve  the  corporation,  but  those  in 
office  hold  until  the  election  or  appointment  and  qualification  of 
their  successors.  The  term  of  all  officers  may  be  fixed  by  the 
by-laws  of  the  corporation,  the  same  not  to  extend  beyond  two 
years.  This  corporation  may,  by  by-laws,  make  regulations 
concerning  subscription  for  or  transfer  of  stock,  fix  upon  the 
amount  of  capital  to  be  invested  in  the  enterprise,  the  division 
of  the  same  into  shares,  the  time  required  for  payment  thereof 
by  the  subscribers  for  stock,  the  amount  to  be  called  for  at  any 
one  time,  and,  in  the  amounts  thus  called,  a  right  of  action 
shall  exist  in  the  corporation  to  sue  any  defaulting  stockholder 
for  the  same. 

SEC.  4.  Directors,  quorum,  bOOkS.— The  board  of  directors 
of  the  Nashville  &  Tuscaloosa  Railroad  Company  shall  consist 
of  five  members,  to  be  elected  either  in  jx3rson  or  by  proxy, 
by  a  majority  of  the  votes  cast,  each  share  of  stock  represent- 
ing one  vote;  shall  keep  a  full  and  true  record  of  all  their  pro- 
ceedings, and  an  annual  statement  of  all  receipts  and  disburse- 
ments shall  be  copied  on  the  minutes,  subject,  at  all  times,  to 
the  inspection  of  any  stockholder.  The  books  of  the  Nashville 


232  ORIGINAL    CHARTER    OF    CENTREVILLE    BRANCH 

&  Tuscaloosn  Railroad  Company  shall  show  the  original  and 
subsequent  stockholders,  their  respective  interests,  the  amount 
which  has  been  paid  on  the  shares  subscribed,  the  transfer  of 
stock,  by  and  to  whom  made;  also  other  transactions  in  which 
it  is  presumed  a  stockholder  or  creditor  may  have  an  interest. 

SEC.  5.  Unpaid  StOCk. — The  amount  of  any  unpaid  stock 
due  from  a  subscriber  to  the  corporation  shall  be  a  fund  for 
the  payment  of  any  debts  due  from  the  corporation,  nor  shall 
the  transfer  of  stock  of  any  particular  stockholder  or  sub- 
scriber relieve  him  from  payment,  unless  his  transferee  has 
paid  up  all  or  any  of  the  balance  due  on  said  original  sub- 
scription. 

SEC.  6.  Express  and  implied  powers.— By  no  implication  or 
construction  shall  the  Nashville  &  Tuscaloosa  Railroad  Com- 
pany be  deemed  to  possess  any  powers  except  those  hereby 
expressly  given  or  necessarily  implied  from  the  nature  of  the 
business  for  which  the  charter  is  granted,  and  by  no  inference 
whatever  shall  this  corporation  possess  the  power  to  discount 
notes  or  bills,  deal  in  gold  or  silver  coin,  to  issue  any  evidence 
of  indebtedness  as  currency,  buy  and  sell  any  agricultural 
products,  deal  in  merchandise,  or  engage  in  any  business  out- 
side of  the  purpose  of  this  charter. 

SEC.  7.  Charter  may  be  repealed  or  amended.— The  right  is 

reserved  to  repeal,  annul,  or  modify  this  charter.  If  it  is  re- 
pealed, or  if  the  amendments  proposed,  being  not  merely  aux- 
iliary, but  fundamental,  are  rejected  by  a  vote  representing 
more  than  half  of  the  stock,  the  corporation  shall  continue  to 
exist  for  the  purpose  of  winding  up  its  aifairs,  but  not  to  enter 
upon  any  new  business.  If  the  amendments  or  modifications, 
being  fundamental,  are  accepted  by  the  corporation  as  aforesaid, 
in  a  general  meeting  to  be  called  for  that  purpose,  any  minor 
or  married  woman,  or  other  person  under  disability,  or  any 
stockholder  not  agreeing  to  the  acceptance  of  the  modification, 
shall  cease  to  be  a  stockholder,  and  the  corporation  shall  be 
liable  to  pay  said  withdrawing  stockholders  the  par  value  of 
their  stock,  if  it  is  worth  so  much;  if  not,  then  so  much  as  may 
be  its  real  value  in  the  market  on  the  day  of  the  withdrawal  of 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         233 

said  stockholders  as  aforesaid;  Provided^  That  the  claims  of 
all  creditors  are  to  be  paid  in  preference  to  said  withdrawing 
stockholders. 

SK  .  s.  Directors,  quorum  of,  may  borrow  money,  issue 

bonds,  mortgages,  etc. — A  majority  of  the  board  of  directors 
of  the  Naslrville  &  Tuscaloosa  Railroad  Company  shall  consti- 
tute a  quorum,  and  shall  fill  all  vacancies  until  the  next  elec- 
tion. The  first  board  of  directors  of  this  company  shall  consist 
of  the  five  original  corporators  who  have  applied  for  this  char- 
ter. The  Nashville  &  Tuscaloosa  Railroad  Company  shall  have 
the  right  to  borrow  money  and  issue  notes  or  bonds  upon  the 
faith  of  the  corporate  property,  and  also  to  execute  a  mortgage 
or  mortgages  as  further  security  for  the  payment  of  money 
thus  borrowed. 

SEC.  9.  Condemnation  of  right  of  way  two  hundred  feet.— 

The  said  Nashville  &  Tuscaloosa  Railroad  Company  shall  have 
the  right,  in  pursuance  of  the  general  law  authorizing  the  con- 
demnation of  private  property  for  works  of  internal  improve- 
ment, as  set  forth  in  £§  1325-134:8  in  the  code  (both  inclusive), 
to  appropriate,  as  an  easement,  the  right  of  way,  not  exceeding 
two  hundred  feet,  one  hundred  feet  on  each  side  of  the  center 
line  of  said  road,  over  the  land  of  any  person  through  which 
the  line  of  the  track  may  be  located.  The  sections  of  the  code, 
1325-1348,  read  as  follows: 

SEC.  10  (1325).  Land  may  be  taken,  hOW.— Any  person  or 
corporation  authorized  by  law  to  construct  any  railroad,  turn- 
pike, canal,  tollbridge,  road,  causeway,  or  other  work  of  inter- 
nal improvement  to  which  the  like  privilege  is  conceded,  may 
take  the  real  estate  of  individuals  not  exceeding  the  amount 
prescribed  by  law,  or  by  the  charter  under  which  the  person 
or  corporation  acts,  in  the  manner  and  upon  the  terms  herein 
provided.  (Iowa  code,  1851,  g  759.) 

1.  The  right  to  take  land  under  the  power  of  eminent  domain  is  not 
restricted  by  any  disability  of  the  owner,  who  is  entitled  to  demand  and 
receive  the  value  of  the  property,  but  must  show  title.     3  Head  (Tenn.), 
63-65. 

2.  By  Acts  Tenn..  1885,  ch.  135,  the  operation  of  this  and  succeeding 
sections  was  extended  so  as  to  apply  and  include  the  condemnation  and 
taking  of  the  property,  privileges,  rights,  and  easements  of  private  cor- 
porations. 


234  ORIGINAL    CHARTER    OF    CENTRE VILLE    BRANCH 

3.  By  Acts  1889,  p.  447  (Shannon's  code,  §  1879),  it  was  made  unlawful 
to  construct  or  use  any  steam  railway  on  any  county  road  or  highway 
without  the  consent  of  county  court,  to  be  granted  in  the  method 
therein  set  out. 

SEC.  11  (1326).  Proceedings,  petition,  etc.— The  party  seek- 
ing to  appropriate  such  lands  shall  file  a  petition  in  the  circuit 
court  of  the  county  in  which  the  land  lies,  setting  forth  in  sub- 
stance (1)  the  parcel  of  land  a  portion  of  which  is  wanted,  and 
the  extent  wanted,  (2)  the  name  of  the  owner  of  such  land,  or, 
if  unknown,  stating  the  fact,  (3)  the  object  for  which  the  land 
is  wanted,  (4)  a  prayer  that  a  suitable  portion  of  land  may  be 
decreed  to  the  petitioner  and  set  apart  by  metes  and  bounds. 
(Iowa  code,  1851,  §760.) 

Petition  need  not  be  sworn  to. 

SEC.  12  (1327).  Notice  to  Owner. — Notice  of  this  petition 
shall  be  given  to  the  owner  of  the  land,  or,  if  a  nonresident  of 
the  county,  to  his  agent,  at  least  five  days  before  its  presenta- 
tion. 

SEC.  13  (1328).  Where  owner  nonresident.— if  the  owner 

is  a  nonresident  of  the  state,  or  unknown,  notice  shall  be  given 
by  publication  as  provided  in  this  code  in  similar  cases  in  chan- 
cery. 

SEC.  14  (1329).  Proceedings  only  bind  parties.— All  parties 

having  any  interest  in  any  way  in  such  land  may  be  made  de- 
fendants, and  the  proceedings  wrill  only  cover  and  affect  the 
interest  of  those  who  are  actually  made  parties,  unoorn  remain- 
dermen being,  however,  bound  by  proceedings  to  wrhicb  all 
living  persons  in  interest  are  parties. 

Tenants  for  life,  years,  and  reversioners  are  interested  parties,  and 
must  be  compensated.  2  Head,  65,  176. 

SEC.  15  (1330).  Writ  of  inquiry  of  damages.— After  the 

requisite  notice  has  been  given,  if  no  sufficient  cause  to  the  con- 
trary is  shown,  the  court  shall  issue  a  writ  of  inquiry  of  dam- 
ages to  the  sheriff,  commanding  him  to  summon  a  jury  to  in- 
quire and  assess  the  damages.  (Iowa  code,  1851,  §763.) 

SEC.  16  (1331).  Clerk  to  issue  writ,  sheriff  to  summon 

jury. — By  consent  of  parties,  or  on  application  of  the  plaintiff, 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.         235 

unless  objection  is  made  by  the  defendant,  the  writ  of  inquiry 
may  be  issued  by  the  clerk  of  the  court,  after  service  of  notice, 
on  which  the  sheriff  will  summon  the  jury. 

SEC.  17(1332,.  Jury  to  be  disinterested.  —  The  jurors  shall 
not  be  interested  in  the  same,  or  a  similar  question,  and  shall 
possess  the  qualifications  of  other  jurors,  and  may  be  nominated 
by  the  court,  selected  by  consent  of  parties,  or  summoned  by 
the  sheriff. 

SEC.  18  (1333).  Failure  tO  attend.  —  If  named  by  the  court, 
and  the  persons  named  are  unable  to  attend  when  summoned, 
the  place  of  such  persons  shall  be  supplied  by  the  sheriff. 

SEC.  19  (1334).  Number  of  jurors,  challenges.  —  The  jury 

will  consist  of  five  persons,  unless  the  parties  agree  upon  a 
different  numl>er;  and  either  party  may  challenge  for  cause, 
or  peremptorily,  as  in  jother  civil  cases. 

See  11  Heis.,  56;  12  Heis.,  56,  57. 

SEC.  20  (1335).  Notice  Of  taking  inquest.  —  The  sheriff  shall 
give  the  parties  or  their  agents,  if  residents  of  the  county, 
three  days'  notice  of  the  time  and  place  of  taking  the  inquest, 
unless  the  time  has  been  fixed  by  the  order  of  the  court.  (Iowa 
code,  1851,  £  771.) 

SEC.  21  (1336).  Jury  to  be  sworn  by  sheriff.  — The  jury, 

before  proceeding  to  act,  shall  be  sworn  by  the  sheriff,  fairly 
and  impartially ,  without  favor  or  affection,  to  lay  off  by  metes 
and  bounds  the  land  required  for  the  proposed  improvement, 
and  to  inquire  and  assess  the  damages. 

SEC.  22  (1337).  Examine  ground  and  assess  damages.  - 

The  jury  will  then  proceed  to  examine  the  ground  and  may 
hear  testimony,  but  no  argument  of  counsel,  and  set  apart  by 
metes  and  bounds  a  sufficient  quantity  of  land  for  the  purposes 
intended,  and  assess  the  damages  occasioned  to  the  owner 
thereby.  (Iowa  code,  1851,  §  768.) 
See  3  Lea,  482. 

SEC.  23  (1338).  Damages,  how  estimated.  —  In  estimating 

the  damages,  the  jury  shall  give  the  value  of  the  land  without 
deduction,  but  incidental  benefits  wli-idi  mav  result  to  the  owner 


236  ORIGINAL    CHARTER    OF    CENTRE VILLE    BRANCH 

by  reason  of  the  proposed  improvement  may  be  taken  into  con- 
sideration in  estimating  the  incidental  damages. 

For  full  .discussion  of  this,  see  Eminent  Domain,  herein.  Refer  to 
index. 

SEC.  24:  (1339).  Report  returned  in  writing.  — The  report 

of  the  jury  shall  be  reduced  to  writing,  signed  by  a  majority  of 
the  jurors,  delivered  to  the  sheriff,  and  by  him  returned  into 
court. 

SEC.  25  (1340).  Confirmation  Of  report. — If  no  objection  is 
made  to  the  report,  it  is  confirmed  by  the  court,  and  the  land 
decreed  to  the  petitioner,  upon  payment  to  the  defendants,  or 
to  the  clerk  for  their  use,  of  the  damages  assessed,  with  costs. 
(/&.,  §  775,  modified.) 

SEC.  26  (1341).  Exceptions  to  report  and  new  writ.— Either 

party  may  object  to  the  report  of  the  jury,  and  the  same  may, 
on  good  cause  shown,  be  set  aside,  and  new  writ  of  inquiry 
awarded.  (Act  1849-50,  ch.  72,  sec.  5.) 

SEC.  27  (1342).  Appeal,  new  trial. — Either  party  may  also 
appeal  from  the  finding  of  the  jury,  and,  on  giving  security  for 
the  costs,  have  a  trial  anew  before  a  jury  in  the  usual  way. 
(/#.,  modified.) 

SEC.  28  (1343).  Costs  against  appellant,  when  not.— if  the 

verdict  of  the  jury,  upon  the  trial,  affirms  the  finding  of  the 
jury  of  inquest,  or  is  more  unfavorable  to  the  appellant  than 
the  finding  of  such  jury,  the  costs  shall  be  adjudged  against 
such  appellant;  otherwise  the  court  may  award  costs  as  in 
chancery  cases.  (/£.) 

SEC.  29  (1344).  Appeal  does  not  suspend  work,  how.— The 

taking  an  appeal  does  not  suspend  the  operations  of  the  peti- 
tioner on  the  land,  provided  such  petitioner  will  give  bond  with 
good  security,  to  be  approved  by  the  clerk,  in  double  the 
amount  of  the  assessment  of  the  jury  of  inquest,  payable  to 
the  defendant,  and  conditioned  to  abide  by  and  perform  the 
final  judgment  in  the  premises. 

SEC.  30  (1345).  Preliminary  surveys,  damages.— A  person 

or  company  actually  intending  to  make  application  for  the  priv- 
ileges herein  contemplated,  and  entering-  upon  the  land  of  an- 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         237 

other  for  the  purpose  of  making  the  requisite  examinations  and 
surveys,  and  doing  no  unnecessary  injury,  is  liable  only  for  the 
actual  damage  done;  and,  if  sued  in  such  case,  the  plaintiff 
shall  recover  only  as  much  costs  as  damages.  (Iowa  code, 
1851,  §  778.) 

SEC.  31  (1346).  Damages  to  be  prepaid,  or  bond  on  appeal. 

—No  person  or  company  shall,  however,  enter  upon  such  land 
for  the  purpose  of  actually  occupying  the  right  of  way  until 
the  damages  assessed  by  the  jury  of  inquest  and  the  cost  have 
been  actually  paid;  or,  if  an  appeal  has  b«?en  taken,  until  the 
bond  has  been  given  to  abide  by  the  final  judgment  as  before 
provided. 

See  6  Cold.,  162;  7  Heis,  518;  13  Lea,  671. 

SEC.  32  (1347).  Owner  may  have  inquest  or  sue  for  dam- 
ages, When;  proceedings. — If,  however,  such  person  or  com- 
pany has  actually  taken  possession  of  such  land,  occupying  it 
for  the  purpose  of  internal  improvement,  the  owner  of  such 
land  may  petition  for  a  jury  of  inquest,  in  which  case  the  same 
proceedings  may  be  had,  as  near  as  may  be,  as  hereinbefore 
provided,  or  he  may  sue  for  damages  in  the  ordinary  way,  in 
which  case  the  jury  shall  lay  off  the  land  by  metes  and  bounds 
and  assess  the  damages,  as  upon  the  trial  of  an  appeal  from  the 
return  of  a  jury  of  inquest. 

See  2  Head,  65,  174;  3  Lea,  480;  13  Lea,  670. 

SEC.  33  (1348).  Limitation  of  proceedings  by  owner.— The 

owners  of  land  shall,  in  such  cases,  commence  proceedings 
within  twelve  months  after  the  land  has  been  actually  taken 
possession  of  and  the  work  of  proposed  internal  improvement 
begun,  saving,  however,  to  unknown  owners  and  nonresidents 
twelve  months  after  actual  knowledge  of  such  occupation,  not 
exceeding  three  years,  and  saving  to  persons  under  disabilities 
of  infancy,  coverture,  and  unsoundness  of  mind  twelve  months 
after  such  disability  is  removed,  but  not  exceeding  ten  years. 
See  13  Heis.,  623. 

SEC.  34.  Gauge,  Charges,  highways. — The  Nashville  &  Tus- 
caloosa  Railroad  Company  is  authorized  to  adopt  a  gauge  of 


238  ORIGINAL    CHARTER    OF    CENTREVILLE    BRANCH 

three  feet  or  any  other  gauge  that  they  may  prefer.  The 
charge  of  transportation  shall  not  exceed  twenty-five  cents  per 
hundred  pounds  on  heavy  articles  and  ten  cents  per  cubic  foot 
on  articles  of  measurement  for  every  hundred  miles  trans- 
ported, and  four  cents  per  mile  for  every  passenger,  with 
power  to  make  special  contracts  with  shippers  on  their  roads 
in  regard  to  rate  of  freights  so  as  not  to  exceed  the  amounts 
herein  designated.  The  line  or  track  of  the  road  shall  be  so 
constructed  as  not  to  interfere  with  convenient  travel  of  the 
public  along  the  highways,  county  roads,  streets,  and  alleys  of 
cities,  towns,  and  villages,  and  so  as  to  allow  carts,  wagons, 
carriages,  and  other  vehicles  conveniently  and  safely  to  pass 
over  or  under  the  line  or  track,  and  so  as  not  to  interrupt 
traveling  on  foot  or  horseback,  or  in  vehicles  of  any  kind,  from 
the  necessary  and  proper  use  of  the  public  road,  street,  or 
alley  in  the  usual  and  proper  mode  of  convenience. 

By  Acts  1885,  ch.  20,  all  railway  companies  were  authorized  to  adopt 
and  alter  at  pleasure  their  gauge. 

SEC.  35.  Crossings,  Signboards.  —  Boards  well  supported 
by  posts,  or  otherwise,  shall  be  placed  and  constantly  kept 
across  each  public  road,  when  the  same  is  crossed  on  the  same 
level  with  the  track  of  the  railway,  the  boards  to  be  elevated 
so  as  not  to  obstruct  travel,  and  on  each  side  of  said  board 
there  shall  be  printed,  in  large  letters,  easily  seen  by  the  trav- 
eler, the  words,  "Railroad  Crossing — Lookout  for  the  Cars." 
Said  boards  need  not  be  put  up  in  the  crossings  of  streets  and 
alleys  in  cities,  towns,  and  villages,  but  this  railroad  company 
shall  be  subject  to  such  proper  regulations  made  by  municipal 
authorities,  in  pursuance  of  general  municipal  powers  regulat- 
ing speed,  pullages  and  flagmen  in  such  municipalities  and  at 
crossings;  where  there  are  sidings  and  switches,  the  whistle 
shall  always  be  blown  at  a  distance  of  not  less  than  two  hundred 
and  fifty  yards  from  every  crossing  of  a  public  road.  When 
land  on  both  sides  of  the  track  is  owned  by  the  same  propri- 
etor, convenient  crossings  shall  be  made  and  kept  up  at  the 
expense  of  this  corporation  for  the  use  of  said  proprietor,  and 
the  necessary  cow-gaps  made. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         239 

SEC.  36.  Regulations  for  running  trains,  fare  must  be  paid. 

— The  board  of  directors  shall  fix  the  regular  times  for  the 
running  of  trains  for  the  trans|>ortation  of  passengers  and  prop- 
erty, and  shall  furnish  sufficient  accommodation  for  their  safe, 
comfortable,  and  convenient  transportation,  and  shall  take, 
transport,  and  discharge  such  passengers  and  property  at,  from, 
and  to  such  places  on  the  due  payment  of  freights,  tolls,  and 
fare  legally  authorized  to  be  charged  therefor,  and  in  case  of 
the  refusal  of  this  corporation,  their  officers,  or  agents,  to  take 
and  transport  any  passenger,  or  property,  or  to  deliver  the 
same,  or  either  of  them,  at  the  regular  and  appointed  time, 
such  corporation  shall  pay  to  the  party  aggrieved  all  damages 
thereby  suffered,  with  costs  of  the  suit.  If  any  passenger  re- 
fuse to  pay  his  toll  or  fare,  the  conductor  may  put  him  off  the 
cars  at  any  station  or  convenient  point  where  said  passenger 
can  step  on  land. 

SEC.  37.  Prohibited  contracts;  must  receive  freight  from 

Other  roads. — This  corporation  shall  make  no  contract  giving 
any  person  a  preference  in  the  speedy  shipment  of  freights. 
This  corporation  shall  receive  on  their  road  full  freighted  cars 
from  other  roads  of  the  same  gauge,  and  transport  them,  with- 
out breaking  bulk,  to  the  place  of  destination,  charging  for  the 
goods,  wares,  and  merchandise  thereon  no  greater  rate  of 
freight  than  is  charged  for  similar  goods,  wares,  and  merchan- 
dise in  their  own  cars,  and  return  said  cars  free  of  charge; 
Provided,  The  cars  so  to  be  received  are  good  and  substantial; 
and  al*o  provided,  The  distance  said  wares  and  merchandise 
are  to  l>e  transported  is  not  less  than  twenty  miles. 

SEC.  38.  Officers,  directors,  capital,  shares.  —  The  said  five 

corporators,  viz.:  E.  F.  Falconnet,  L.  S.  Goodrich,  G.  H. 
Nixon,  J.  II.  Moore,  W.  B.  Russell,  shall,  within  a  convenient 
time  after  the  registration  of  this  charter  in  the  office  of  the 
secretary  of  state,  select  from  their  number  a  president,  secre- 
tary and  treasurer,  or  the  last  two  offices  may  l>e  combined  into 
one,  and  shall  not  necessarily  be  stockholders.,  said  president 
and  the  other  corporators  to  constitute  the  first  board  of  direct- 
ors. The  board  of  directors  of  the  Nashville  <&  Tuscaloosa 


24:0  ORIGINAL    CHARTER    OF    CENTREVILLE    BRANCH 

Railroad  Company  may  fix  the  amount  of  stock  of  the  company 
and  the  number  of  shares  into  which  the  same  may  be  divided, 
and  under  their  direction  subscription  books  may  be  opened  to 
obtain  stock,  all  other  persons  having  an  equal  right  with  said 
original  corporators  to  subscribe  for  stock  until  the  full  amount 
of  said  stock  is  subscribed.  When  a  sufficient  amount  of  stock 
is  subscribed,  notice,  personal  or  by  advertisement  in  a  news- 
paper where  the  principal  office  of  the  company  is  kept,  is  to 
be  given  of  the  time  and  place  for  an  election  of  officers.  The 
result  of  all  the  elections  is  to  be  determined  by  a  majority  of 
the  votes  cast,  each  share  to  represent  one  vote.  The  board  of 
directors  may  at  any  time  increase  the  capital  stock,  if  the 
necessities  of  the  corporation,  in  their  estimation,  require  said 
increase. 

SEC.  39.  May  enter  upon  private  lands.  — The  company, 

by  its  officers  and  agents,  may  enter  upon  the  lands  of  private 
persons  for  the  purpose  of  making  surveys,  estimates,  and  lo- 
cation of  route. 

SEC.  40.  Shares  of  stock  personalty. — The  stock  is  to  be 

impressed  with  the  character  of  personal  property. 

We,  the  undersigned,  apply  to  the  State  of  Tennessee,  by 
virtue  of  the  law  of  the  land,  for  a  charter  of  incorporation  for 
the  purposes  and  with  the  powers,  etc.,  declared  in  the  fore- 
going instrument. 

Witness  our  hands,  this  thirtieth  day  of  May,  1877. 

E.  F.  FALCONNET, 
G.  H.  NIXON, 
L.  S.  GOODRICH, 
J.  H.  MOORE, 
W.  B.  RUSSELL. 

The  above  charter  was  properly  acknowledg-ed  and  registered  in  the 
register's  office  of  Hickman  county,  in  book  T,  p.  261 ;  and  in  secretary 
of  state's  office,  in  book  A,  p.  475. 


NASHVILLE,    CHATTANOOGA    4    ST.    LOUIS    RAILWAY. 


CHAPTER   XVIII. 

DEEDS  TO  NASHVILLE  A   TUSCALOOSA   RAILROAD  AXD   ROAD 
FROM  KIMMIXS  TO  MAXNIE,  ON  ALLEX'S  CREEK. 

DEED  TO  THAT  PART  OF  ROAD  FROM  DICKSON 
TO  CENTRE VILLE. 

NASHVILLE  &  TUSCALOOSA  RAILROAD  COMPANY,     i 

TO — Deed. 
NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY.  \ 

WHEREAS,  A  contract  was  entered  into  by  and  between  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  and  the  Nashville 
&  Tuscaloosa  Railroad  Company  on  the  twenty-ninth  day  of 
July,  1880,  providing  that  the  former  company  should  extend 
the  Nashville  &  Tuscaloosa  Railroad  from  Graham  station  to  a 
point  on  the  north  bank  of  Duck  river  opposite  Centreville, 
about  thirteen  miles,  and,  in  consideration  of  such  extension, 
the  Nashville  &  Tuscaloosa  Railroad  Company  agreed  to  convey 
in  fee  simple,  all  of  its  railroad  from  Dickson,  Tenn. ,  to  Centre- 
ville, Tenn.,  together  with  its  rights,  franchises,  equipments, 
appurtenances,  etc.,  to  the  Nashville,  Chattanooga  &  St.  Louis 
Railroad;  and, 

WHEREAS,  The  said  Nashville,  Chattanooga  &  St.  Louis 
Railway  has  complied  in  every  particular  with  the  contract  so 
made,  and  has  constructed  and  completed  said  extension  from 
Graham  to  a  point  on  the  opposite  side  of  Duck  river  from 
Centreville.  Now,  therefore,  in  consideration  of  the  premises, 
the  said  Nashville  &  Tuscaloosa  Railroad  Company  hath 
granted,  bargained,  sold,  assigned,  transferred,  and  conveyed, 
and  by  these  presents  doth  grant,  bargain,  sell,  assign,  trans- 
fer, and  convey  unto  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  and  to  its  successors  and  assigns  forever,  all  and 
singular  that  branch  of  the  Nashville,  Chattanooga  &  St. 

16 


242       DEEDS  RELATING  TO  CENTREVILLE  BRANCH 

Louis  Railway  known  as  the  Centreville  branch,  and  formerly 
known  as  the  Nashville  &  Tuscaloosa  Railroad,  beginning  at  the 
junction  of  said  branch  and  the  line  of  said  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  in  Dickson  county,  State  of  Ten- 
nessee, and  extending  in  a  line  to  the  town  of  Centreville,  in 
Hickman  county,  in  said  state,  a  distance  of  thirty-four  miles 
of  completed  road,  together  with  all  and  singular  the  appur- 
tenances thereof,  and  all  equipments,  lands,  tracks,  lines,  rails, 
bridges,  erections,  fences,  walls,  fixtures,  privileges,  rights 
and  interests,  choses  in  action,  leaseholds,  and  other  things  of 
every  kind,  nature,  and  character  belonging  or  appertaining  to 
said  road,  and  all  the  tolls,  incomes,  uses,  and  profits  to  be  had 
or  demanded  from  the  same  or  any  part  or  proportion  thereof, 
and  all  railway  stations  and  depots,  with  all  appurtenances 
necessary  and  convenient  for  the  sole,  complete,  and  entire  use 
and  operation  as  well  as  maintenance  of  the  said  roads  or  rail- 
ways, herein  conveyed  with  its  equipments,  appurtenances,  and 
all  its  other  property,  real,  personal,  and  mixed,  and  all  the 
Franchises,  rights,  privileges,  and  franchises  of  the  said  Nash- 
passts>  e  ville  &  Tuscaloosa  Railroad  Company  pertaining  to 

the  roads  and  railways  herein  conveyed,  or  any  of  them,  or 
the  operation,  use,  or  enjoyment  thereof,  and  also  all  right  to 
use  the  roadbeds,  tracks,  sidings,  turnouts,  and  switches  con- 
structed at  the  execution  of  these  presents. 

To  have  and  to  hold  the  said  railroads  and  appurtenances, 
and  equipments  and  estate,  property,  rights,  privileges,  fran- 
chises, and  interests  above  conveyed  or  transferred,  or  intended 
so  to  be,  together  with  all  and  singular  the  emoluments,  in- 
comes, and  advantages,  tenements,  hereditaments,  and  appurte- 
nances thereto  belonging  or  in  anywise  appertaining,  and  the 
reversion  or  reversions,  rents,  issues,  and  profits  thereof,  unto 
the  said  Nashville,  Chattanooga  &  St.  Louis  Railway,  its  suc- 
cessors and  assigns,  forever.  And  the  said  Nashville  &  Tusca- 
loosa Railroad  Company  covenants  to  and  with  the  said  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  and  its  assigns  and 
successors  forever,  that  the  said  premises  herein  conveyed  are 
free  and  unincumbered,  and  that  it  has  full  right  to  convey  the 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         243 

same,  and  that  it  will  forever  defend  the  title  to  the  same  against 
the  lawful  claims  of  any  and  all  parties  whatever. 

In  witness  whereof,  the  Nashville  &  Tuscaloosa  Railroad 
Company  has  caused  its  corporation  name  to  be  signed  hereto, 
by  its  president  and  secretary,  this  thirteenth  day  of  March, 
1883.  [SEAL]  JAS.  D.  PORTER,  President. 

J.  H.  AMBROSE,  Secretary. 

The  above  deed  was  properly  acknowledged  and  registered  in  the 
register's  office  of  Hickman  county,  in  trust  deed  book  No.  2,  p.  552-54. 

DEED  TO  THAT  PART  OF  ROAD  FROM  CENTRE- 

VILLE  TO  LEWIS  COUNTY  LINE, 

NEAR  KIMMINS. 

NASHVILLE  &  TUSCALOOSA  RAILROAD  COMPANY,     j 

TO —  Deed. 
NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY.  ) 

This  indenture,  made  and  entered  into  this  twentieth  day  of 
June,  1884,  by  and  between  the  Nashville  &  Tuscaloosa  Rail- 
road Company  and  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  both  being  corporations  created  and  existing  under  the 
laws  of  the  State  of  Tennessee,  witnesseth:  that, 

WHEREAS,  Under  a  contract  entered  into  between  the  two 
companies,  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
have  constructed,  built,  and  completed  a  line  of  narrow  gauge 
railway  from  Centreville,  in  Hickman  county,  to  a  point  on  the 
line  separating  Lewis  county  from  Hickman  county,  a  distance 
of  thirteen  miles;  and, 

WHEREAS,  Under  the  terms  of  said  contract,  upon  the  com- 
pletion of  said  line  of  road,  the  Nashville  &  Tuscaloosa  Railroad 
Company  agreed  to  convey  the  same  in  consideration  of  said 
building  and  construction  thereof  by  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway: 

Now,  therefore,  in  consideration  of  the  premises,  the  said 
Nashville  &  Tuscaloosa  Railroad  Company  hath  granted,  bar- 
gained, sold,  and  conveyed,  and  by  these  presents  doth  grant, 
sell,  and  convey,  unto  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  its  assigns  and  successors,  forever,  all  and  singular 


244       DEEDS  RELATING  TO  CENTREVILLE  BRANCH 

that  branch  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
known  as  the  Centreville  branch,  and  formerly  known  as  the 
Nashville  &  Tuscaloosa  Railroad  at  the  extension  of  the  same, 
beginning  opposite  the  town  of  Centreville,  in  Hickman  county, 
upon  the  north  side  of  Duck  river  and  extending  by  the  way  of 
^tna  furnace  to  the  southern  line  of  Hickman  county  separat- 
ing it  from  Lewis  county,  a  distance  of  thirteen  miles  of  com- 

«/ 

pleted  narrow  gauge  road,  together  with  all  and  singular  the 
appurtenances  thereof,  all  the  lands,  tracks,  lines,  rails,  bridges, 
ways,  rights  of  way,  buildings,  erections,  fences,  walls,  fix- 
tures, privileges,  rights  and  interests,  real  estate,  contracts, 
leaseholds,  and  all  other  things  of  every  kind,  nature,  and 
character,  belonging  or  appertaining  to  said  road,  or  any  part 
or  portion  thereof,  and  all  railway  stations  and  depots  with  all 
appurtenances  necessary  and  convenient  for  the  sole,  complete, 
and  entire  use  and  operation,  as  well  as  maintenance  of  said  road 
or  railway  herein  conveyed,  also  all  right  to  use  the  roadbed, 
tracks,  sidings,  turnouts,  and  swritches,  constructed  or  to  be 
constructed. 

To  have  and  to  hold  the  said  railroad  and  appurtenances, 

Fights,  fran-  and  estate,  property,  rights,  privileges,  franchises, 
chises,  etc..  J  ' 

pass.  and  interests  above  conveyed  or  transferred,  or  in- 

tended so  to  be,  together  with  all  and  singular  the  emoluments, 
incomes,  tenements,  and  hereditaments  and  appurtenances 
thereto  belonging  or  in  anywise  appertaining,  and  the  reversion 
or  reversions,  rents,  issues,  and  profits  thereof,  unto  the  said 
Nashville,  Chattanooga  &  St.  Louis  Railway  and  its  successors 
and  assigns  forever,  as  aforesaid,  and  the  said  Nashville  &  Tus- 
caloosa Railroad  Company  doth  hereby  covenant  and  agree  to 
and  with  the  said  Nashville,  Chattanooga  &  St.  Louis  Railway 
that  it  is  the  true  and  lawful  owner  of  said  property  herein 
conveyed,  and  has  a  full  right  to  convey  the  same,  and  that  the 
same  is  free  and  unincumbered,  and  agrees  and  binds  itself  and 
successors  forever  to  forever  warrant  and  defend  the  title  to 
the  said  property  to  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  and  its  successors  and  assigns,  against  the  lawful  claims 
of  all  parties  whatsoever. 


NASHVILLE,    CHATTANOOGA    &    8T.    LOUIS    RAILWAY.         245 

In  witness  whereof,  the  said  Nashville  &  Tusealoosa  Railroad 
Company  has  caused  its  president  and  secretary  to  affix  the 
name  of  the  said  company  hereto,  with  its  corporate  seal,  the 
day  and  date  first  above  written.  Erasures  and  interlineations 
made  on  first,  ninth,  twentieth,  twenty-first,  and  twenty-fourth 
line  of  tirst  page  were  made  before  signing. 

THE  NASHVILLE  &  TUSCALOOSA  RAILROAD  COMPANY, 

[SEAL.]  By  JAS.  D.  PORTER,  President. 

The  above  deed  was  properly  acknowledged  and  registered  in  the 
register's  office  of  Hickman  county,  in  trust  deed  book  No.  3,  pp.  60-62. 

DEED  OF  SOUTHERN  IRON  COMPANY  TO  NASH- 
VILLE, CHATTANOOGA  &  ST.  LOUIS  RAIL- 
WAY OF  ROAD  FROM  KIMMINS  TO 

MANNIE,  ON  ALLEN'S  CREEK. 
WHEREAS,  The  Southern  Iron  Company,  a  corporation  char- 
tered by  the  laws  of  the  State  of  Alabama,  and  which  said  cor- 
poration is  now,  and  has  been  for  some  time,  doing  business  in 
the  States  of  Alabama  and  Tennessee  and  elsewhere,  did,  at  a 
regular  stockholders'  meeting,  held  according  to  law,  at  which 
there  was  present  twenty-one  thousand  five  hundred  and  fifty- 
two  shares  of  the  capital  stock  of  twenty-seven  thousand  shares, 
and  all  present  voting  for  the  following  resolution: 

"That,  for  improving  the  property  of  the  company  and 
thereby  permanently  increasing  its  earning  capacity,  the  board 
of  directors,  by  and  through  the  officers  of  the  company,  be, 
and  they  are  hereby,  authorized  and  empowered  to  erect  and 
equip  three  additional  furnaces  on  land  now  owned  by  the  com- 
pany or  to  l>e  acquired  for  this  purpose,  two  of  said  furnaces 
to  be  located  at  or  near  Allen's  creek,  in  Wayne  county,  Ten- 
nessee, and  one  on  the  company's  Drouillard  property,  in 
Dickson  county,  Tennessee. 

"  2.  That,  to  accomplish  this  and  other  purposes  hereinafter 
mentioned,  the  directors  be,  and  hereby  are,  authorized  and 
empowered,  in  their  discretion  and  as  they  may  deem  for  the 
best  interest  of  the  company,  (1)  to  sell  or  dispose  of  this  com- 
pany's narrow  gauge  railroad,  extending  from  /Etna  to  Allen's 
creek,  and  make  a  deed  thereto,  or  to  mortgage  the  same.'' 


24:6       DEEDS  RELATING  TO  CENTREVILLE  BRANCH 

I  hereby  certify  the  above  to  be  a  true  copy  of  an  extract 
from  the  minutes  of  the  stockholders'  meeting  of  the  Southern 
Iron  Company,  held  at  Huntsville,  Ala.,  on  the  third  day  of 
May,  1892,  same  being  entered  on  page  72  of  the  minute  book 
of  the  Southern  Iron  Company. 

[SEAL.]  J.  A.  COOPER,  Secretary. 

AND,  WHEREAS,  in  pursuance  of  said  order  of  the  stock- 
holders, the  directors  of  said  company  did  pass  the  following 
resolution  at  a  meeting  of  the  board  of  directors  of  the  South- 
ern Iron  Company,  held  August  6,  1892: 

"  The  proper  officers  of  the  company  are  hereby  authorized, 
empowered,  and  requested — 

"2.  To  sell  to  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way Company,  at  the  price  of  $125,000  ($100,000  to  be  paid 
in  lawful  money  and  $25,000  in  bonds  of  the  Nashville  Iron, 
Steel  &  Charcoal  Company),  the  narrow  gauge  owned  by  this 
company,  extending  from  Kimmins,  in  Lewis  county,  Tennessee, 
to  the  Allen's  creek  mines  of  the  company,  in  Wayne  county, 
Tennessee,  and  to  execute  a  deed  thereto." 

I  certify  that  the  above  is  a  correct  copy  of  said  resolution, 
and  is  entered  on  the  minutes  of  the  board  of  directors  of  this 
company.  THE  SOUTHERN  IRON  COMPANY, 

[SEAL.]  By  J.  A.  COOPER,  Setfy  <&  Tres. 

AND,  WHEREAS,  Said  Southern  Iron  Company  has  hereto- 
fore built  and  now  owns  a  railroad  beginning  at  Kimmin,  a 
station  on  said  railroad  in  the  county  of  Lewis,  in  the  State  of 
Tennessee,  near  the  southern  line  of  Hickman  county,  in  said 
state,  and  running  from  said  station  to  the  present  terminus  of 
said  railroad  at  Mannie  mines,  on  Allen's  creek,  in  Wayne 
county,  Tennessee,  being  a  distance  of  eighteen  miles  as  now 
laid  out  and  constructed,  consisting  of  roadbed,  track,  rails, 
crossties,  chairs,  iron,  spikes,  steel,  splices,  bolts,  nuts,  bridges, 
width  of  rieht  an<^  a'l  °ther  propery  appurtenant  thereto;  also  all 
of  way.  lands  adjacent  to  said  road,  and  fifty  feet  distant 

from  the  center  thereof,   and  which  constitutes  the  right  of 
way,  whether  the  same  constituted  a  part  of  the  original  tract 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.'        247 

of  said  iron  company  or  lands  purchased  by  it  from  other  per- 
sons; the  lands  purchased  by  it  are  described  in  the  deeds  of 
Lafayette  Hates,  Mrs.  Byron  Smith,  -  -  Gilbert,  John  Pax- 
ton,  John  Hensley,  E.  P.  Groves  and  wife,  Harrison  Smethurst, 
H.  T.  Christian,  Allen  Vandever,  F.  B.  Williams,  Dr.  Moses, 
D.  K.  Hines,  J.  G.  Grinder,  B.  F.  Perryhouse,  R.  J.  David- 
son, John  Hensley,  Mrs.  J.  Hulme,  H.  T.  Christian,  J.  W. 
Christian,  J.  W.  Linsey,  D.  T.  Voorhees,  A.  Churchwell,  Mrs. 
Churchwell,  John  Banks,  A.  C.  Rasberry,  W.  P.  Clark,  and 
so  much  of  the  property  originally  bought  by  said  Southern 
Iron  Company  as  is  included  in  said  right  of  way  as  said  road 
is  now  laid  out  and  built;  also,  it  has  built  section  houses,  de- 
pots, etc.,  on  real  estate  not  included  in  said  right  of  way,  and 
upon  which  section  houses  are  now  built  as  evidenced  by  the 
deeds  of  one  or  more  of  those  named  hereinbefore  to  said 
Southern  Iron  Company;  also,  said  company  owns  lands  which 
said  Southern  Iron  Company  have  caused  to  be  condemned,  or 
has  the  right  to  condemn  or  has  the  license  to  use,  as  well  as 
rights  acquired  by  possession  and  use  thereof,  as  is  shown  on 
map  attached  to  this  deed;  and  also  franchises  to  operate  said 
railroad  and  build  the  same  and  condemn  property  therefor;  and, 

WHEREAS,  Said  Southern  Iron  Company  did  heretofore  con- 
vey said  property,  together  with  other  property,  to  the  Central 
Trust  Company  of  New  York,  by  mortgage  dated  the  -  -  day 
of  -  — ,  18 — ,  and  to  enable  it  to  make  this  conveyance,  it 
has  procured  said  trust  company  to  release  from  the  operation 
and  effect  of  said  mortgage,  all  the  foregoing  described  prop- 
erty so  that  said  Southern  Iron  Company  might  convey  away 
the  same;  and, 

WHEREAS,  The  said  Southern  Iron  Company  now  desires  to 
sell  the  same,  in  order  to  erect  two  furnaces  at  Allen's  Creek, 
which  are  to  cost  in  the  neighborhood  of  two  hundred  thousand 
dollars;  and, 

WHEREAS,  The  Nashville,  Chattanooga  &  St.  Louis  Railway 
is  desirous  of  purchasing  the  same  in  the  event  said  two  fur- 
naces are  erected,  and  that  said  Southern  Iron  Company  will 
ship  all  the  products,  freight,  etc.,  of  their  furnaces  over  this 
line  of  railroad: 


24:8       DEEDS  RELATING  TO  CENTREVILLE  BRANCH 

Now,  then,  for  and  in  consideration  of  the  premises  and  for 
the  further  consideration  hereinafter  set  out,  the  said  Southern 
Iron  Company,  by  virtue  of  the  foregoing  resolutions,  has  this 
day  bargained,  and  does  hereby  alien,  confirm,  convey,  and 
sell  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  a  cor- 
poration chartered  by  the  State  of  Tennessee,  all  the  foregoing 
described  property. 

The  consideration  referred  to  in  the  preamble  to  this  deed  is 
such  that  the  said  Nashville,  Chattanooga  &  St.  Louis  Railway 

is  to  pay  one  hundred  and  twenty-five  thousand 
Consideration.     ,„/»,,  ,, 

dollars  tor  the  same,  twenty- five  thousand  dollars  of 

which  is  to  be  paid  in  first  mortgage  bonds  of  the  Nashville  Iron, 
Steel  &  Charcoal  Company,  the  receipt  of  which  is  hereby  ac- 
knowledged, and  the  remaining  one  hundred  thousand  dollars 
to  be  paid  as  the  work  on  the  said  furnaces,  to  be  erected  as 
aforesaid,  progresses.  It  is  distinctly  understood  and  agreed, 
however,  and  made  a  part  of  this  consideration,  that  the  said 
Southern  Iron  Company  is  to  build  the  said  two  furnaces  at 
Allen's  creek,  and  expend  all  of  the  one  hundred  and  twenty- 
five  thousand  dollars  referred  to  above  in  their  erection;  that 
they  are  to  ship  all  products  of  these  furnaces  over  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  and  pay  a  uniform  rate 
of  twenty-five  cents  per  ton  to  or  from  Allen's  creek  in  excess 
of  rates  to  or  from  ^Etna,  and  on  all  shipments  of  ore,  lime- 
stone, wood,  and  charcoal,  they  are  to  pay  twenty-five  cents 
per  ton  between  Allen's  creek  and  ./Etna. 

And  the  said  Southern  Iron  Company  covenants  hereby  that 
it  is  lawfully  seized  and  possessed  of  all  the  personal  and  real  es- 
tate and  property  aforesaid,  together  with  the  rights  of  way  de- 
scribed herein,  and  upon  which  said  railroad  is  located  and 
constructed;  that  all  of  said  property  hereby  conveyed  it  has 
a  right  to  convey,  and  that  all  of  said  property  so  conveyed  is 
free  and  clear  of  all  liens,  taxes,  and  other  incumbrances.  And 
said  Southern  Iron  Company  furthermore  covenants  and  will 
forever  warrant  title  to  all  the  real  estate  herein  described  to 
the  Nashville,  Chattanooga  &  St.  Louis  Railway,  its  assigns  and 
successors,  forever.  It  further  covenants  and  agrees  to  reim- 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         249 

burse  the  Nashville,' Chattanooga  &  St.  Louis  Railway  in  any 

moneys  which  it  may  pay,  or  is  compelled  to  pay  hereafter,  to 
secure  and  make  perfect  the  right  of  way  and  title  to  any  real 
estate  which  is  herein  conveyed  or  sought  to  be  conveyed. 

IN  WITNESS  WHEREOF,  The  Southern  Iron  Company  has 
caused  this  instrument  to  be  subscribed  by  its  president  and 
attested  by  its  secretary  and  the  corporate  seal  of  said  company 
to  be  hereto  affixed,  this  the  twenty-fourth  day  of  September, 
A.D.  1892.  THE  SOUTHERN  IRON  COMPANY, 

[SEAL.]  By  A.  M.  SHOOK,  President. 

Attest:  J.  A.  COOPER,  Secretary. 

STATE  OF  TENNESSEE,  DAVIDSON  COUNTY. 

I,  Charles  F.  Polock,  a  notary  public  of  the  State  of  Ten- 
nessee, residing  in  Nashville,  do  hereby  certify  that  A.  M. 
Shook,  the  president  of  the  Southern  Iron  Company,  and  J.  A. 
Cooper,  the  secretary  of  the  same  company,  whose  names  are 
signed  to  the  foregoing  instrument,  and  who  are  known  to  me 
to  be  the  president  and  secretary  of  said  company,  and  with 
whom  I  am  personally  acquainted,  acknowledged  before  me, 
on  this  day,  that  they  executed  the  said  instrument  on  the  day 
the  same  bears  date,  as  their  act  and  deed  as  the  president  and 
secretary,  respectively,  of  said  company,  for  the  purposes 
therein  contained. 

And  the  said  A.  M.  Shook  and  J.  A.  Cooper,  being  by  me 
first  duly  sworn,  did  depose  and  say  that  he,  the  said  Shook, 
was  the  president  of  the  Southern  Iron  Company;  that  he,  the 
said  Cooper,  was  the  secretary  of  the  same  company;  that  the 
seal  affixed  to  the  foregoing  instrument,  purporting  to  be  the 
corporate  seal  of  said  company,  was  the  corporate  seal  of  said 
company;  that  it  was  affixed  hereto  by  order  of  the  board  of 
directors  of  the  said  company ;  and  that  they  signed  their  names 
hereto  by  the  like  order,  as  the  president  and  secretary  of  the 
said  company,  respectively. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  fixed 
my  official  seal,  this,  the  twenty-fourth  day  of  September,  one 
thousand  eight  hundred  and  ninety-two. 

[SEAL.]  CHARLES  F.  POLOCK,  Xotary  l*ubUc. 


250  ABSTRACT    OF    TITLE    TO    COLUMBIA    BRANCH 


CHAPTER  XIX. 

THE  DUCK  RIVER  VALLEY  NARROW  GAUGE  RAILROAD 
COMPANY. 

(COLUMBIA  BRANCH.) 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— On  October  2,  1879,  the  Duck  River  Valley  Narrow 
Gauge  Railway  Company  leased  its  road,  appurtenances,  fix- 
tures, properties,  etc. ,  to  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  for  a  period  of  forty  years.  After  operating  the  road 
for  some  time  under  this  lease,  a  proposition  was  submitted  by 
the  stockholders  of  the  latter  company  to  sell  said  road,  its 
rights,  privileges,  franchises,  etc.,  to  the  said  Nashville,  Chat- 
tanooga &  St.  Louis  Railway,  which  was  accepted. 

On  November  23,  1887,  in  pursuance  of  a  resolution  of  the 
stockholders  of  the  Duck  River  Valley  Narrow  Gauge  Railway 
Company,  held  March  8,  1887,  at  Columbia,  Tenn.,  the  said 
company  executed  a  deed  to  its  road,  right  of  way,  appurte- 
nances, properties,  rights,  privileges,  franchises,  etc.,  to  the 
Nashville,  Chattanooga  &  St.  Louis  Railway,  and  the  lease  was 
formally  terminated.  The  consideration  was  that  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  should  widen  said  railroad 
track  to  a  standard  gauge,  and  to  operate  the  same  as  a  broad 
gauge  railroad;  to  assume  certain  stock  notes  of  said  Duck 
River  Valley  Narrow  Gauge  Railroad  Company,  not  exceeding 
$5,517,  and,  in  addition,  £772.10  to  cover  interest  thereon;  and 
the  further  consideration  that  the  said  Nashville,  Chattanooga 
&  St.  Louis  Railway  should  assume  the  mortgage  debts  of  said 
railroad  company  as  shown  in  two  mortgages,  one  registered 
in  the  register's  office  of  Maury  county,  in  book  Z,  vol.  2,  p. 
200,  securing  §250,000  of  bonds;  and  the  other  registered  in 
mortgage  book  D,  vol.  3,  p.  329,  to  secure  $140,000  of  bonds. 
Said  deed  is  acknowledged  and  of  record  in  the  register's  office 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          251 

of  Maury  county,  in  hook  O,  vol.  3,  pp.  484-488;  in  Marshall 
county,  in  hook  E,  No.  2,  pp.  61-64;  in  Lincoln  county,  in 
record  of  deeds,  hook  S,  pp.  350-355.  The  deed  is  also  in- 
serted herein.  See  next  chapter. 

1.  The  road  has  subsequently  been  changed  to  a  broad  gauge,  and  is 
now  being  operated  in  compliance  with  the  terms  of  sale. 

2.  Legality  of  the  purchase  of  the  road  and  franchises. — The  pur- 
chase of  this  railway  and  franchises  of  the  company  was  legal.     Under 
the  Acts  of  Tenn.,  1871,  ch.  09,  which  superseded  the  Acts  of  1871,  ch.  22, 
it  was  provided  that  "every  railroad  corporation  in  this  state,  whether 
created  under  a  general  or'special  law,  shall  have  the  power  to  acquire, 
by  purchase  or  other  lawful  contract,  and  have,  hold,  use  and  operate 
any  railroad,  with  its  franchises,  belonging  to  any  other  railroad  corpo- 
ration." 

What  franchises,  etc.,  passed  under  this  sale.— in  addition 

to  the  road,  properties,  etc.,  therein  conveyed,  the  deed  specif- 
ically transferred  all  rights,  franchises,  right  of  way,  etc.,  of 
said  Duck  River  Valley  Narrow  Gauge  Railroad  Company. 
For  the  enumeration  of  the  said  rights,  franchises,  etc.,  see 
charter,  further  on  in  this  chapter. 

Width  Of  right  Of  way. — The  charter  of  this  company  was 
granted  hy  the  chancery  court  of  Humphreys  county,  at  \Va- 
verly,  Tenn.,  at  its  November  term,  1872.  The  decree  of  in- 
corporation may  he  found  in  minute  hook  No.  1,  page  745,  et 
aeq.j  of  that  court.  It  is  also  set  out  herein  further  on  in  this 
chapter.  The  charter  was  granted  under  the  provisions  of  an 
act  of  Tennessee,  1870-71,  ch.  54,  p.  63,  passed  January  30, 
1871,  entitled,  "An  Act  to  authorize  the  chancery  courts  to 
grant  letters  of  incorporation."  The  decree  of  incorporation 
provided,  among  other  things,  that  the  said  company  should 
possess  all  the  powers,  etc.,  of  the  Tennessee  &  Alabama  Rail- 
road Company  and  the  Nashville  &  Decatur  Railroad  Company, 
and,  in  addition,  all  the  rights,  powers,  etc.,  granted  to  rail- 
road companies  by  the  act  of  the  general  assembly,  chapter 
54,  approved  January  30,  1871,  and  all  amendments  thereto. 

The  supreme  court  of  Tennessee,  in  construing  this  charter, 
held  that  it  was  valid  as  to  all  the  powers  conferred  by  the  acts  of 
1870-71,  ch.  54,  approved  January  30,  1871,  and  the  amend- 
ments thereto,  as  referred  to  above,  but  that  that  part  of  the 
incorporating  decree  attempting  to  vest  in  the  company  all  the 


252  ABSTRACT    OF    TITLE    TO    COLUMBIA    BRANCH 

powers  conferred  in  the  charter  of  the  Nashville  &  Decatur  and 
Tennessee  &  Alabama  Railroad  Companies  was  void.  See  Wil- 
liams et  al.  v.  Duck  River  Valley  Narrow  Gauge  Railroad  Com- 
pany et  al.,  9  Bax.  (Tenn.),  488.  This  being  so,  the  width  of 
the  right  of  way  must  be  determined  by  the  Acts  of  1870-71, 
ch.  54,  p.  63,  and  the  amendments  thereto,  as  nothing  appears 
in  the  charter  of  the  company  upon  the  subject,  save  a  reference 
to  this  act.  Subsection  8,  of  section  15  of  that  act,  provides 
that,  "said  corporation,  when  thus  incorporated,  shall  have 
the  right  to  take  and  appropriate  the  land  of  any  individual, 
over  whose  land  the  line  of  said  road  runs,  for  the  right  of  way, 
not  exceeding  two  hundred  feet  in  width,  and  for  necessary  de- 
pot grounds,  switches,  car  houses,  and  workshops,"  in  a  mode 
therein  set  out.  In  addition,  re-subsection  6,  of  subsection  8, 
of  section  15,  of  said  act,  which  may  be  found  on  page  71, 
provides,  among  other  things,  that,  ' '  when  possession  has 
been  taken  by  the  company,  for  the  use  of  said  railroad,  the 
owners  shall  commence  their  proceedings  for  damages  against 
the  railroad,  for  the  appropriation  of  their  land  for  its  necessary 
use,  within  twelve  months  after  the  land  has  been  actually  taken 
possession  of,  and  work  begun,  or  their  right  is,  and  shall  be 
barred,  saving,  however,  to  unknown  persons  and  nonresidents, 
twelve  months  after  the  actual  knowledge  of  such  occupation, 
not  exceeding  three  years,  and  saving  to  persons  under  disabili- 
ties of  infancy,  coverture,  and  unsoundness  of  mind,  twelve 
months  after  the  removal  of  such  disabilities." 

Under  these  acts,  the  Duck  River  Valley  Narrow7  Gauge  Rail- 
road Company  could  have  condemned  any  number  of  feet  for 
its  right  of  way,  up  to  and  including  two  hundred.  Whatever 
width  it  may  have  condemned  through  each  landowner's  prem- 
ises will  now  be  binding  upon  the  Nashville,  Chattanooga  & 
St.  Louis  Railway.  Should  no  condemnation  have  been  had  at 
all,  then  the  landowners  would  now  be  barred  from  recovering 
compensation,  unless  they  applied  in  time  for  assessment  of 
damages  as  provided  in  the  above  act,  and  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway,  as  the  lawful  purchaser  of  said 
road,  right  of  way,  franchises,  etc. ,  would  be  entitled  to  two 


NASHVILLE,    CHATTANOOGA    A   ST.    LOUIS    RAILWAY.         253 

hundred  feet.  The  supreme  court,  in  construing  this  act  in 
reference  to  the  right  of  way  of  this  company,  held  that, 
"assuming  that  the  company  might,  by  following  the  statute, 
have  taken  ami  appropriated,  at  its  option,  less  than  one  hun- 
dred feet  (on  each  side),  yet  having  failed,  in  any  manner,  to 
<lc-iirnate  the  land  to  be  appropriated,  their  entry  and  the  con- 
struction of  their  road  must  l>e  regarded  as  an  appropriation  of 
so  much  of  the  land  as  the  law  authorized,"  which  was  two 
hundred  feet.  J)uck  Riper  Yalley  Narrow  Gawje  Railroad 
Company  v.  Coc/irane,  3  Lea  (Tenn.),  478. 

It  is  probable  that  the  statute  of  limitations  would  run  against  the 
railway,  under  this  act,  as  to  such  parts  of  right  of  way  as  adjoining 
landowners  may  be  allowed  to  use  and  occupy  for  the  statutory  period, 
which  is  not  the  case  on  the  main  line  and  most  of  the  branches.  See 
discussion  as  to  right  of  way  on  main  line  in  notes  to  sees.  24  and  25  of 
charter  of  Nashville,  Chattanooga  »fe  St.  Louis  Kailway,  ch.  1,  herein. 

Distance  built  when  road  purchased.— The  line  from  Co- 
lumbia to  Fayetteville,  a  distance  of  about  forty-nine  miles,  had 
been  completed  when  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  purchased  this  road. 

Where  road  chartered  termini.— The  Duck  River  Valley  Nar- 
row Gauge  Railroad  Company  was  chartered  by  the  chancery 
court,  at  Waverly,  Tenn.,  on  November  4,  1872,  as  will  ap- 
pear from  minute  book  1,  page  745  et  »eq.,  of  said  court,  which 
decree  is  also  set  out  herein  below.  The  road  was  chartered  to 
run  from  a  point  at  or  near  the  town  of  Johnsonville,  in  Hum- 
phreys county,  to  a  point  at  or  near  the  town  of  Fayetteville, 
in  Lincoln  county,  passing  through  or  near  to  the  towns  of  Cen- 
treville,  in  Hickman  county;  Columbia,  in  Maury  county;  Lewis- 
burg,  in  Marshall  county,  and  Petersburg,  in  Lincoln  county, 
with  the  right,  power,  and  privilege  to  extend  said  road  from 
Fayetteville  to  the  Nashville  &  Chattanooga  Railroad,  and  to 
build  any  branch  the  company  saw  tit.  The  company  built  the 
road  from  Columbia  to  Petersburg,  and  then  leased  the  road 
to  the  Nashville,  Chattanooga  &  St.  Louis  Railway.  While 
operating  the  road  under  this  lease,  the  latter  company  extended 
the  road  to  Fayetteville,  under  the  charter  of  the  said  Duck 
River  Valley  Narrow  Gauge  Railroad  Company,  and  subse- 


254  ORIGINAL    CHARTER    COLUMBIA    BRANCH 

quently  purchased  the  entire  line  from  Columbia  to  Fayette- 
ville, as  heretofore  explained. 

The  road  from  Fayetteville  to  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  was  not  built  under  the  authority  above  granted,  but  under  the 
charter  and  amendments  of  the  Winchester  &  Alabama  Railroad  Com- 
pany. See  charter  of  that  road.  Refer  to  index. 

ORIGINAL  CHARTER  OF  DUCK  RIVER  VALLEY 
NARROW  GAUGE  RAILROAD. 

(Granted  by  chancery  court  at  Waverly,  Tennessee,  under  Acts  Tenn., 
1870-1,  ch.  54;  see  minute  book  1,  p.  745.) 

E.  F.  FALCONETTE  ET  ALS.,  Ex  PARTE. 

SECTION  1.  Preamble. — This  cause  came  on  and  was  finally 
heard  this  fourth  day  of  November,  1872,  by  and  before  the 
Hon.  George  H.  Nixon,  chancellor,  holding  the  chancery  court 
at  Waverly,  Humphreys  county,  Tennessee,  upon  the  original 
and  amended  petition  heretofore  filed  in  this  case,  and  the  pro- 
ceedings heretofore  had  herein,  and  the  statement  of  the  pres- 
ident and  directors  of  the  Duck  River  Valley  Narrow  Gauge 
Railroad  Company,  and  the  petition  of  said  president  and  di- 
rectors, praying  to  be  chartered  and  incorporated  as  a  corpora- 
tion and  body  politic  by  the  name  and  style  of  the  Duck  River 
Valley  Narrow  Gauge  Railroad  Company. 

And  it  appearing  to  the  court  that,  by  former  decrees  of 
this  court  in  this  case,  commissioners  have  heretofore  been  ap- 
pointed to  solicit  and  receive  subscriptions  of  the  capital  stock, 
for  the  purpose  of  building  and  constructing  a  narrow  gauge 
railroad  from,  at,  or  near  the  town  of  Johnsonville,  in  Hum- 
phreys county,  to  the  town  of  Fayetteville,  Lincoln  county, 
Tennessee;  and  that  said  commissioners  have  received  subscrip- 
tions of  the  capital  stock  of  said  company  the  sum  of  about  one 
hundred  and  fifty  thousand  dollars;  that  the  length  of  said  con- 
templated railroad,  including  side  tracks,  is  about  one  hundred 
and  thirty  miles,  and  the  amount  so  subscribed  exceeds  the  sum 
of  one  thousand  dollars  per  mile;  and,  it  appearing  to  the  court 
that,  after  having  first  given  notice,  as  required  by  law,  the 
stockholders  of  said  proposed  railroad  met  in  the  town  of  Co- 
lumbia, Maury  county,  Tennessee,  on  the  eleventh  of  Septem- 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         255 

her,  1872,  for  the  purpose  of  organizing  said  company  and 
electing  nine  directors  thereof,  when  the  following  persons 
were  duly  elected  as  said  directors,  to  wit:  L.  S.  Goodrich, 
Humphreys  county,  Tennessee;  O.  A.  Nixon  and  H.  A.  Shause, 
Hickman  county,  Tennessee;  Ed  Williams  and  L.  D.  Myers, 
Maury  county,  Tennessee;  R.  G.  McClune,  Marshall  county, 
Tennessee;  W.  B.  Hampton,  Lincoln  county,  Tennessee;  Wil- 
liam Smith,  Moore  county,  Tennessee;  M.  R.  Campbell,  Coffee 
county,  Tennessee;  that  on  September  12,  1872,  said  directors 
so  elected  met  in  the  town  of  Columbia,  in  said  county  of 
Maury,  and,  after  having  been  first  duly  sworn  by  Benjamin 
Harrison,  Esq.,  an  acting  justice  of  the  peace  for  said  county 
of  Maury,  proceeded  to  organize  said  company,  and  elected 
L.  D.  Myers,  one  of  said  directors,  president  of  said  company, 
and  elected  E.  F.  Falconnette,  chief  engineer,  and  John  B. 
Hamilton,  secretary  and  treasurer,  of  said  company. 

And  it  appearing  from  the  statements  of  said  president  and 
directors  of  said  company,  signed  by  said  president  and  direct- 
ors, and  countersigned  by  the  said  secretary  and  treasurer 
thereof,  officially  attested  by  said  secretary  and  treasurer  of 
said  company,  and  proved  and  acknowledged  as  deeds  for  lands 
are  required  to  be  probated,  and  which  said  statement  is  tiled 
as  a  part  of  the  record  in  this  cause,  and  which  statement  sets 
forth  the  names  and  places  of  residence  of  each  of  the  directors 
of  said  company,  the  name  and  style  of  the  company,  the  de- 
scription of  the  line,  the  terminus  of  said  road,  the  general 
route,  the  amount  of  capital  stock  required  for  its  construction, 
the  amount  actually  subscribed,  the  shares  into  which  the  cap- 
ital stock  is  divided,  and  the  amount  of  said  capital  stock  so 
subscribed,  that  has  at  this  time  been  paid  in  and  collected. 

And,  it  appearing  to  the  court  that  said  company  so  organ- 
ized for  the  purpose  of  building  and  constructing  a  narrow 
gauge  railroad  from  Johnsonville,  Humphreys  county,  to  Fay- 
etteville,  Lincoln  county,  Tennessee,  have  had  said  road  sur- 
veyed, have  adopted  as  the  name  and  style  of  said  company, 
The  Duck  River  Valley  Narrow  Gauge  Railroad  Company,  and 
have  divided  the  capital  stock  thereof  into  shares  of  twenty- 


256  ORIGINAL    CHARTER    COLUMBIA    BRANCH 

five  dollars  each,  have  adopted  as  the  present  termini!  of  said 
road  at  or  near  the  town  of  Johnsonville,  Humphreys  county, 
and  at  or  near  the  town  of  Fayetteville,  Lincoln  county,  Ten- 
nessee, and  that  by  calculation  and  survey,  it  is  estimated  that 
the  amount  required  for  the  construction  of  said  road  is  about 
eight  hundred  and  eighty  thousand  and  sixty-three  dollars. 

And  it  further  appearing  that  said  president  and  directors  of 
said  company  contemplate  extending  said  railroad  from  the 
said  town  of  Fayetteville  to  the  Nashville  &  Chattanooga  Rail- 
road, and  desire  to  have  granted  them  the  right,  power,  and 
privilege  of  building  and  constructing  such  branches  to  their 
said  railroad,  in  the  State  of  Tennessee,  as  they  may  deem 
necessary  and  proper  to  advance  the  interest  of  their  said  rail- 
road, and  of  the  public. 

And  it  further  appearing  to  the  court  that  said  railroad  com- 
pany have  in  all  respects  fully  complied  with  the  law  in  this 
behalf,  and  the  court  being  of  opinion  that  the  said  railroad 
company  have  a  right  to  be  chartered  and  incorporated,  and 
that  the  rights  and  privileges  by  them  prayed  and  asked  for 
are  not  in  conflict  with  the  public  good  and  morals,  nor  with 
the  constitution  and  laws  of  the  State  of  Tennessee  or  of  the 
United  States: 

SEC.  2.  Incorporation,  name,  general  powers.— it  is  there- 
fore ordered,  adjudged,  and  decreed,  by  the  court,  that  said 
railroad  company,  and  said  president  and  directors  thereof,  be, 
and  are  hereby,  chartered  and  incorporated  as  a  body  corporate 
and  politic  by  the  name  and  style  of  the  Duck  River  Valley 
Narrow  Gauge  Railroad  Company,  and  by  such  name  to  sue 
and  be  sued,  plead  and  be  impleaded,  and  to  have  and  enjoy  a 
right  of  succession  for  ninety-nine  years,  with  a  capital  stock 

of  one  million  dollars,  with  the  right,  power,  and 
Capital  stock.          ...  .  .... 

privilege  to  increase  the  same  to  hve  million  dollars, 

and  with  the  right,  power,  and  privilege  on  the  part  of  said 
company  to  build  and  construct  a  railroad  with  such  breadth  or 
gauge  thereof  as  they  may  desire,  elect,  and  adopt 
from  a  point  at  or  near  the  said  town  of  Johnson- 
ville, in  Humphreys  county,  to  a  point  at  or  near  the  said  town 


NASHVILLE,    CHATTANOOGA    &    8T.    LOUIS    RAILWAY.         257 

of  Fayetteville,  Lincoln  county,  Tenn.,  passing  through  or  near 
the  town  of  Centreville,  Hickman  county;  Columbia, 
Maury  county;  Lewisburg,  Marshall  county;  Peters- 
burg, Lincoln  county,  Tenn.,  with  the  further  right,  power, 
and  privilege  on  the  part  of  said  railroad  company  to  extend 
said  railroad,  if  the  president  and  directors  and  a  majority  of 
the  stockholders  may  desire,  elect,  and  determine,  from  said 
town  of  Fayetteville  to  the  Nashville  &  Chattanooga  Railroad, 
and  to  build  any  branch  or  branches  to  said  Duck  May  bulld 
River  Valley  Narrow  Gauge  Railroad  that  the  said  branches- 
president  and  directors,  by  and  with  the  advice  and  consent  of 
the  stockholders  of  said  railroad,  may  desire,  determine,  and 
elect,  and  with  all  the  rights,  powers,  and  privileges  heretofore 
granted  by  the  general  assembly  of  the  State  of  Tennessee  to 
the  Tennessee  &  Alabama  Railroad  and  Nashville  &  Decatur 
Railroad  Companies,*  and  with  all  the  rights,  powers,  and 
privileges  granted  to  railroad  companies  by  the  act  of  assembly 
of  State  of  Tennessee,  ch.  54,  approved  January  30,  1871,  and 
all  acts  of  said  general  assembly  amendatory  thereof,  and  with 
the  further  right,  power,  and  privilege  to  do  all  things  neces- 
sary and  proper  for  the  building  and  constructing  of  said  rail- 
road, and  to  pass  all  by-laws,  rules,  and  regulations  not  incon- 
sistent with  the  constitution  and  laws  of  the  United  States  or 
the  State  of  Tennessee. 

Ordered,  that  the  clerk  and  master  of  this  court  certify  a 
copy  of  this  decree  to  the  president  of  said  company,  and  that 
said  company  and  L.  S.  Goodrich,  their  security,  pay  the  cost 
of  this  cause,  for  which  execution  will  issue. 

Ordered,  that  court  adjourned. 

[SIGNED.]  G.  H.  NIXON,  Chancellor. 

1.  The  above  decree  is  of  record  in  the  office  of  the  chancery  court  at 
Waverly,  Tenn.,  in  minute  book  1,  p.  745,  Humphreys  county,  Tenn. 

*2.  Charter  construed.  —  The  supreme  court,  in  construing1  this 
charter,  held  that  the  part  of  the  above  incorporating  decree  attempting' 
to  vest  in  the  company  all  the  powers  conferred  in  the  charters  of  the 
Nashville  &  Decatur  and  Tennessee  «fe  Alabama  Railroad  Companies  was 
void,  but  that  the  charter  was  valid  as  to  all  powers  conferred  as  con- 
tained in  Acts  1870-71.  ch.  54,  approved  January  30,  1871,  and  amend- 
ments thereto,  as  referred  to  in  the  above  decree.  9  Bax.  (Tenn.),  488. 

3.  Same;  width  of  right  of  way. — The  supreme  court  in  another* case, 
in  construing  this  charter,  held  that  "even  assuming  that  the  company 
17 


258  DEED  TO  COLUMBIA  BRANCH 

might,  by  following  the  statute,  have  taken  and  appropriated,  at  its 
option,  less  than  one  hundred  feet  on  each  side,  yet  having-  failed  in  any 
way  to  designate  the  land  to  be  appropriated,  their  entry  and  construc- 
tion of  their  road  must  be  regarded  as  an  appropriation  of  so  much  of 
the  land  as  the  law  authorized,"  which  was  two  hundred  feet.  3  Lea 
(Tenn.),  478. 

4.  For  full  discussion  of  railway's  ownership  of  right  of  way,  etc.,  see 
index. 


CHAPTER  XX. 

DEED  TO  DUCK  RIVER  VALLEY  NARROW  GAUGE  RAILROAD. 
[EXECUTED  NOVEMBER  23,  1887.] 

DEED. 

WHEREAS,  The  Duck  River  Valley  Narrow  Gauge  Railroad 
Company  is  a  corporation  chartered  under  the  laws  of  the  State 
of  Tennessee,  and  which  heretofore  built  and  operated  a  rail- 
road from  the  city  of  Columbia,  in  the  county  of  Maury, 
State  of  Tennessee,  to  the  town  of  Fayetteville,  in  the  county 
of  Lincoln,  state  aforesaid;  and, 

WHEREAS,  Heretofore,  on  the  second  day  of  October, 
1879,  said  Duck  River  Valley  Narrow  Gauge  Railroad  Com- 

•/  O 

pany  leased  its  road,  with  all  its  appurtenances,  fixtures,  and 
property,  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
Company  for  a  period  of  forty  years;  and, 

WHEREAS,  Both  parties  to  said  lease  desire  to  end  the 
same,  heretofore  said  Duck  River  Valley  Narrow  Gauge  Rail- 
road Company,  together  with  the  stockholders,  adopted  the 
following  resolutions,  to  wit: 

WHEREAS,  At  a  meeting  of  the  stockholders  of  the  Duck 
River  Valley  Narrow  Gauge  Railroad  Company,  held  on  the 
eighth  day  of  March,  1887,  at  Columbia,  Tennessee,  a  com- 


NASHVILLE,    CHATTANOOGA    4    ST.    LOUIS    RAILWAY.         259 

mittee  was  appointed  to  confer  with  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  Company,  with  the  view  to  agree 
on  terms  for  the  sale  and  purchase  of  the  property  and  fran- 
chises and  individual  stock  of  this  company  to  the  Nashville, 
Chattanooga  &  St.  Louis  Railway;  and, 

WHEREAS,  James  S.  Ewing,  T.  D.  Williamson,  W.  J. 
Leonard,  F.  J.  Ewing,  W.  J.  Andrews,  and  E.  C.  McDowell 
were  appointed  a  committee,  under  this  resolution,  to  treat  with 
the  said  Nashville,  Chattanooga  &  St.  Louis  Railway,  and, 
after  conference  with  said  Nashville,  Chattanooga  &  St.  Louis 
Railway,  the  terms  of  agreement  suggested  by  said  committee, 
and  accepted  by  said  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way, were  adopted,  as  follows: 

Articles  of  agreement  and  contract  entered  into  by  and  be- 
tween the  Duck  River  Valley  Railroad  Company,  its  directors 
and  stockholders,  to  be  known  herein  as  the  party  of  the  first 
part,  and  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  to 
be  known  as  the  party  of  the  second  part. 

1.  The  party  of  the  first  part  agrees  and  binds  itself  and 
themselves  to  transfer  and  deliver  to  the  party  of  the  second 
part,  by  the  first  of  September,  1887,  all  the  stock  now  held 
by  the  individuals  or  corporations  in  the  company  of  the  party 
of  the  first  part,  and  to  deliver  to  the  party  of  the  second  part, 
all  the  property  of  every  nature  and  kind  belonging  to  said 
company,  including  franchises,  roadbed,  cross-ties,  depot  houses, 
depots,  switches,  turnouts,  iron,  tools,  implements,  and  fixtures, 
cars,  engines,  and  all  property  used  or  necessary  to  be  used  in 
the  operations  of  said  road,  and  now  used  and  owned  thereby. 

2.  Upon  which  being  done,  as  set  out  in  the  first  section 
hereof,  the  Nashville,  Chattanooga  &  St.  Louis  Railway  agrees 
to  accept  said  stock,  property,  and  franchises,  and  binds  itself 
to  make  said  railroad  track  to  the  standard  gauge,  and  to  equip 
the  same  as  a  good,  substantial,  .standard  gauge  railroad,  by  the 
thirty-first  day  of  December,  1888,  and  to  operate  the  same  un- 
der its  franchises  and  charter,  as  a  part  of  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  system,  at  the  expense  of  the 


260  DEED    TO    COLUMBIA    BRANCH 

party  of  the  second  part,  and  to  assume  and  pay  certain  stock 
notes  of  the  Duck  River  Valley  Narrow  Gauge  Railroad,  not 
exceeding  five  thousand  five  hundred  and  fifteen  dollars,  and 
interest  thereon.  And  the  party  of  the  second  part  agrees  and 
undertakes,  as  owner  of  said  corporation,  to  take  care  of  all  the 
mortgage  debts  of  the  party  of  the  first  part,  and,  as  respects 
these,  to  be  substituted  to  the  liabilities  of  the  party  of  the  first 
part;  and, 

WHEREAS,  Said  proposed  agreement  was  reported  back  to  an 
adjourned  meeting  of  the  stockholders  of  the  Duck  River  Valley 
Narrow  Gauge  Railroad  Company,  held  at  Columbia,  on  the 
twenty-second  day  of  March,  1887,  and  a  resolution  was 
adopted  at  said  meeting  authorizing  the  directors  of  said  rail- 
road company  to  apply  to  the  county  court  of  Marshall  county 
and  to  the  city  of  Columbia,  requesting  that  an  election  be  had 
under  the  law  providing  for  that  purpose,  to  authorize  the  sale 
of  the  stock  held  by  the  said  county  and  said  city  of  Columbia, 
as  well  their  assent  to  the  sale  and  transfer  of  the  corporate 
property  of  said  railroad;  and, 

WHEREAS,  Said  election  was  held  on  the  sixth  day  of  August, 
1887,  for  the  county  of  Marshall,  and  on  the  twenty-second 
day  of  June,  1887,  for  the  city  of  Columbia,  and  resulted  in  au- 
thorizing the  sale  of  the  stock  of  said  city  of  Columbia  and  said 
county  of  Marshall,  and  of  the  corporate  property,  franchises, 
rights,  etc.,  as  set  out  in  the  articles  of  agreement  as  proposed 
between  said  committee  and  the  said  Nashville  &  Chattanooga 
Railway  to  the  said  Nashville,  Chattanooga  &  St.  Louis  Railway, 
in  accordance  with  the  laws  of  the  State  of  Tennessee;  and, 

WHEREAS,  The  individual  stockholders  of  this  company  have 
also  authorized  and  ratified  the  sale  of  their  stock  and  of  the 
corporate  property  and  franchises  of  this  company  to  said 
Nashville,  Chattanooga  &  St.  Louis  Railway: 

Now,  THEREFORE,  Be  it  resoJved  by  the  stockholders  of  the 
Duck  River  Valley  Narrow  Gauge  Railroad  Company,  in  reg- 
ular annual  convention  assembled,  that  the  proposed  agreement 
as  hereinbefore  set  out,  made  between  said  committee  and  said 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         261 

Chattanooga  &  St.  Louis  Railway,  be,  and  the  same  is  hereby, 
ratified  and  adopted,  and  the  president  and  directors  of  the 
company  are  hereby  authorized,  empowered,  and  directed  to 
execute  all  proper  deeds  and  conveyances  and  all  other  articles 
of  agreement  necessary  to  convey  all  of  the  rights,  properties, 
franchises,  and  easements  and  immunities  of  this  company  in 
and  to  its  railroad,  running  from  the  city  of  Columbia,  in  the 
county  of  Maury,  through  Lewisburg,  in  Marshall  county,  to 
Fayetteville,  in  the  county  of  Lincoln,  being  between  forty- 
eight  and  forty-nine  miles  of  narrow  gauge  railroad,  together 
with  all  sidings,  turnouts,  switches,  properties,  depots,  depot 
grounds,  tools,  rolling  stock  of  every  kind  and  nature  whatever 
used  in  operating  and  carrying  on  the  business  of  said  railroad 
company,  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway, 
upon  the  terms  and  conditions  set  out  in  said  agreement  afore- 
said; and, 

WHEREAS,  The  city  of  Columbia  owned  stock  in  said  rail- 
road company  to  the  amount  of  fifty  thousand  dollars,  and 
the  county  of  Marshall  owned  stock  in  said  railroad  company 
to  the  amount  of  one  hundred  and  fifteen  thousand  five  hundred 
dollars,  and  the  county  of  Maury  owns  fifteen  hundred  dollars 
of  said  stock  of  said  railroad  company,  and  certain  individuals 
owned  the  balance  of  said  stock;  and  said  county  of  Marshall 
and  said  city  of  Columbia  have,  by  a  vote  of  the  people,  accord- 
ing to  the  laws  of  the  State  of  Tennessee,  and  by  the  requisite 
majority,  as  well  as  other  stockholders,  ratified  said  agreement 
hereinbefore  set  out;  and, 

WHEREAS,  It  is  now  desired  to  execute  said  contract  and 
agreement  in  full,  and,  to  this  end,  the  following  deed  or  con- 
tract is  entered  into: 

1.  The  Duck  River  Valley  Narrow  Gauge  Railroad  Company 
does  hereby  bargain  ami  sell,  and  transfer  and  deliver,  to  the 
Nashville,  Chattanooga  &  St.  Louis  Railway,  its  road  aforesaid, 
with  the  franchises  thereof  and  all  the  property,  including  road- 
bed, cross-ties,  depot  houses,  depots,  switches,  turnouts,  tools, 
engines,  easements,  rights  of  way,  real  estate,  cars,  etc.,  used 
to  carry  on  said  road;  and  also  has  caused  its  stockholders  to 


262  DEED  TO  COLUMBIA  BRANCH 

transfer  the  stock  of  the  corporate  and  individual  stockholders 
in  said  corporation,  except  a  small  amount  of  stock  held  by  in- 
dividuals, to  said  Nashville,  Chattanooga  &  St.  Louis  Railway. 

And,  in  consideration  of  the  premises,  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  hereby  agrees  to  accept  said  fran- 
chises, property,  and  stock  aforesaid,  and  hereby  covenants, 
agrees,  and  binds  itself  to  widen  said  railroad  track  to  the 
standard  gauge,  and  to  equip  the  same  as  a  good  standard 
gauge  railroad,  with  steel  rails,  by  the  thirty-first  day  of  De- 
cember, 1888,  and  to  operate  the  same  under  the  franchises 
and  charter  of  said  Duck  River  Valley  Narrow  Gauge  Railroad, 
at  the  sole  expense  of  the  Nashville,  Chattanooga  &  St.  Louis 
Railway. 

And  it  further  assumes  to  pay  certain  stock  notes  of  said 
Duck  River  Valley  Narrow  Gauge  Railroad  Company  not  ex- 
ceeding in  amount  five  thousand  five  hundred  and  fifteen  dol- 
lars and  $772.10  to  cover  interest  thereon;  and  it  will,  upon 
the  execution  and  acknowledgment  of  this  deed  of  conveyance, 
deliver  its  certified  check  for  said  sum;  and  said  Nashville, 
Chattanooga  &  St.  Louis  Railway  hereby  assumes  to  take  care 
of  the  mortgage  debts  of  said  railroad  company,  as  shown  in  two 
mortgages,  one  registered  in  the  register's  office  of  Maury 
county,  book  Z,  vol.  2,  pp.  200-210,  securing  two  hundred 
and  fifty  thousand  dollars  of  mortgage  bonds  and  interest 
thereon,  and  the  other  registered  in  mortgage  book  O,  vol.  3, 
pp.  329-337  inclusive,  in  the  said  office  of  said  county,  secur- 
ing the  payment  of  one  hundred  and  forty  thousand  dollars  of 
said  bonds  and  interest  thereon. 

And  the  said  Duck  River  Valley  Narrow  Gauge  Railroad 
Company  hereby  covenants  with  the  Nashville,  Chattanooga  & 
St.  Louis  Railway  that  it  is  lawfully  seized  and  possessed  of 
said  property,  and  has  a  good  right  to  convey  the  same,  and  it 
does  hereby  warrant  and  defend  the  title  to  said  property  to  the 
said  Nashville,  Chattanooga  &  St.  Louis  Railway  forever. 

In  witness  whereof,  the  said  Duck  River  Valley  Narrow 
Gauge  Railroad  Company  and  the  said  Nashville,  Chattanooga 
&  St.  Louis  Railway  have  caused  their  proper  officers  of  their 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         263 

respective  companies  to  affix  the  corporate  names  and  seals  of 
said  companies  hereto. 

This  23d  day  of  November,  1889. 

DUCK  RIVER  VALLEY  NARROW  GAUGE  RAILROAD  COMPANY, 
[SEAL.]  BY  J.  A.  McRADY,  President. 

H.  K.  Moss,  Secretary. 
NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 

[SEAL.]  BY  J.  W.  THOMAS,  President. 

J.  H.  AMBROSE,  Secretory. 

The  above  deed  was  duly  acknowledged  and  registered  in  register's 
office  of  Maury  county,  in  book  O,  vol.  3,  pp.  484-488;  in  Marshall  county, 
in  book  2  E,  pp.  61-64;  in  Lincoln  county,  in  records  deed  book  S,  pp. 
350-355. 


264         ABSTRACT    OF    TITLE    SEQUATCHIE    VALLEY    BRANCH 


CHAPTER  XXI. 

SEQUATCHIE  VALLEY  BRANCH. 
[COMPOSED  OF  JASPER,  PIKEVILLE,  AND  INMAN  BRANCHES.] 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— What  is  known  as  the  Sequatchie  Valley  branch — that 
is,  the  road  from  Bridgeport,  Ala.,  to  Pikeville,  Tenn.,  with  a 
branch  road  on  said  stem  from  Victoria  to  Inman — may  be  di- 
vided into  three  parts:  (1 )  The  road  from  Bridgeport  to  Jasper, 
(2)  the  road  from  Jasper  to  Pikeville,  (3)  the  road  from  Vic- 
toria to  Inman.  These  three  subdivisions  were  acquired  by 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  in  different 
ways.  For  convenience  the  first  will  hereafter  be  called  the 
Jasper  branch;  the  second,  the  Pikeville  branch,  and  the  third 
the  Inman  branch.  Their  method  of  acquisition,  width  of  right 
of  way,  etc. ,  will  now  be  discussed  in  the  order  named. 

HOW  Jasper  branch  acquired.— The  Jasper  branch  from 
Bridgeport,  Ala.,  to  Jasper,  Tenn.,  was  built  by  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  under  and  by  virtue  of  an  act 
of  the  legislatures  of  both  Tennessee  and  Alabama.  The  Tennes- 
see act,  which  may  be  found  in  Acts  1857-58,  ch.  161,  p.  382, 
sec.  3,  provide;!,  among  other  things  "that  the  state  aid  here- 
tofore granted  to  the  Memphis  &  Charleston  Railroad  Company 
for  the  purpose  of  extending  said  railroad  from  Stevenson  to 
Chattanooga,  on  the  north  side  of  Tennessee  river,  the  sum  of 
ten  thousand  dollars  per  mile,  be,  and  the  same  is  hereby,  trans- 
ferred and  granted  to  the  Nashville  &  Chattanooga  Railroad 

"  O 

Company  for  the  purpose  of  constructing  a  branch  railroad  from 
Bridgeport,  or  some  suitable  point  on  the  Nashville  &  Chatta- 
nooga Railroad,  to  some  point  on  the  line  of  the  extension  of 
said  Memphis  &  Charleston  Railroad,  the  same  not  to  extend 
beyond  the  town  of  Jasper,  in  Marion  county,  with  the  same 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         265 

liens  retained  to  the  state  as  are  provided  for  in  said  act.  For 
act  itself,  see  next  chapter. 

The  Alabama  act,  which  may  be  found  in  Acts  1859-60,  No. 
216,  provided  "that  the  act  granting  the  right  of  way  to  the 
Nashville  &  Chattanooga  Railroad  Company  through  Jackson 
county,  and  the  privilege  of  constructing  a  bridge  across  Ten- 
nessee river  in  said  county  (approved  January  21,  1850),  be  so 
amended  that  the  Nashville  <&  Chattanooga  Railroad  Company 
shall  have  the  right  to  construct  and  operate  a  branch  of  their 
road  from  a  point  on  the  line  of  their  road  at  or  near  Bridge- 
port, in  Jackson  county,  to  the  Tennessee  state  line,  in  a  direc- 
tion to  Jasper,  Tenn.,  with  all  the  rights,  powers,  and  privi- 
leges pertaining  to  the  main  line,  and  subject  to  the  same  lia- 
bilities and  restrictions." 

For  Acts  of  Alabama,  approved  January  21,  1850,  above  referred  to, 
see  p.  55  herein. 

The  Nashville  &  Chattanooga  Railroad  Company,  which  has 
subsequently  changed  its  name  to  the  Nashville,  Chattanooga 
&  St.  Louis  Railway,  as  heretofore  explained,  accepted  the 
Tennessee  act,  as  will  appear  from  the  minutes  of  the  com- 
pany of  April  16,  1858,  and,  subsequently,  the  Alabama  act. 
The  road  was  then  built  from  Bridgeport,  Ala.,  to  Jasper, 
Tenn.,  a  distance  of  about  twelve  miles. 

Width  of  right  of  way  of  Jasper  branch.— As  will  appear 

from  the  above  acts  of  Alabama,  the  road  from  Bridgeport, 
Ala.,  to  the  Tennessee  state  line  was  authorized  to  be  con- 
structed, with  all  the  rights,  powers,  and  privileges  of  the  main 
line.  Hence,  the  width  of  the  right  of  way  will  be  controlled 
by  sections  24  and  25  of  the  charter  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  ch.  1,  herein,  which  give  one  hun- 
dred feet  on  each  side  of  the  center  of  the  road,  in  the  absence 
of  any  contract  with  the  original  landowner  to  the  contrary, 
when  necessary  for  railroad  puqwses. 

The  act  of  Tennesse,  above  set  out,  authorizing  the  extension 
of  the  road  from  the  Alabama  state  line  to  Jasper,  does  not 
specifically  confer  any  particular  width  of  right  of  way,  but 
this  was  unnecessary,  as  the  legislature  had  previously,  by  Acts 


266         ABSTRACT    OF    TITLE    SEQUATCHIE    VALLEY    BRANCH 

1849-50,  ch.  266,  sec.  3,  passed  January  19,  1850,  provided 
"that  the  Shelby ville  branch,  and  such  other  branches  of  the 
Nashville  &  Chattanooga  road  as  may  be  made,  shall  have  all 
the  rights  and  privileges,  and  shall  be  placed  in  all  respects  on 
the  same  footing,  with  the  Nashville  &  Chattanooga  road." 
This  being  so,  the  width  of  right  of  way  from  the  state  line  to 
Jasper  would  also  be  one  hundred  feet  on  each  side  of  the  cen- 
ter of  the  road,  when  necessary  for  railroad  purposes,  in  the 
absence  of  any  contract  with  the  original  landowner  to  the 
contrary.  There  can  be  no  question  of  this. 

1.  For  discussion  of  width  of  right  of  way  in  Nashville,  Chattanooga 
&  St.  Louis  Railway  charter,  which  also  controls  here,  see  sees.  24  and 
25  of  said  charter,  ch.  1,  herein. 

2.  For  discussion  of  method  of  taking  more  than  one  hundred  feet  on 
each  side  of  the  center  of  the  road,  when  necessary  for  railroad  purposes, 
see  "  Right  of  Way,"  Eminent  Domain,  herein.     Refer  to  index. 

3.  State  aid. — By  Acts  Tenn.,  1865-6,  ch.  14,  p.  33,  state  aid  was  granted 
to  Nashville  &  Chattanooga  Railroad  Company  to  build  the  Jasper  branch. 


Pikeville  branch,  how  acquired.— The  road  from  Jasper  to 

Pikeville  was  authorized  to  be  constructed  by  the  Sequatchie 
Valley  Railroad  Company,  which  corporation  was  chartered  by 
the  Acts  of  Tenn.,  1868-69,  ch.  11,  p.  93,  sec.  30,  to  construct 
a  road  from  Jasper,  in  Marion  county,  to  Pikeville,  in  Bledsoe 
county.  Said  charter  is  set  out  further  on  in  this  chapter. 
After  its  incorporation  the  company  built  the  road  from  Jasper 
to  Victoria,  and  on  January  27,  1877,  in  pursuance  of  a  reso- 
lution of  its  stockholders  and  directors,  it  sold  said  road,  right 
of  way,  franchises,  etc.,  to  the  Nashville,  Chattanooga  &  St. 
Louis  Railway.  The  consideration  was  the  assumption  on  the 
part  of  the  latter  company  of  all  the  liabilities  of  the  said 
Sequatchie  Valley  Railroad  Company,  amounting  to  about 
$75,000.  A  deed  to  said  road,  franchises,  etc.,  is  registered 
in  the  register's  office  of  Marion  county,  Tenn.,  in  book  L, 
vol.  1,  p.  308,  which  deed  is  also  set  out  in  the  next  chapter. 
After  the  purchase,  as  aforesaid,  the  Nashville,  Chattanooga  & 
St.  Louis  Railway,  under  and  by  virtue  of  the  franchises  ac- 


NASHVILLE,    CHATTANOOGA   <fe    ST.    LOUIS    RAILWAY.         267 

quired  thereby,  extended  the  road  from  Victoria  to  Pikeville, 
under  the  charter  of  said  Sequatchie  Valley  Railroad  Company. 

The  purchase  of  this  road,  franchises,  etc.,  was  legal  under  Acts  Tenn., 
1871,  ch.  09,  which  superseded  the  Acts  of  1871,  ch.  22. 

Width  of  right  of  way  of  Pikeville  branch.— There  was  no 

specified  width  for  a  right  of  way  granted  in  the  charter  of  the 
Sequatchie  Railroad  Company.  In  fact,  it  was  not  authorized 
by  its  charter  to  condemn  property  at  all,  but  simply  to  pur- 
chase it.  However,  its  charter  granted  it  all  the  rights,  pow- 
ers, and  privileges  of  other  roads  under  the  general  improve- 
ment laws.  Under  these  laws  and  the  Acts  of  Tennessee,  1849 
-50,  ch.  72,  sec.  5,  and  of  the  code,  §  1844  (Shannon's),  all  cor- 
porations authorized  by  law  to  construct  a  railroad  were  em- 
powered to  condemn  property  therefor,  but  the  number  of 
feet  actually  condemned  would  possibly  now  be  binding  upon 
the  Nashville,  Chattanooga  &  St.  Louis  Railway,  under  this 
charter.  Where  no  condemnation  was  had  at  all,  the  width  of 
the  right  of  way  would  possibly  be  two  hundred  feet,  as  ex- 
plained in  the  discussion  of  the  width  of  right  of  way  of  the 
Nashville  &  Tuscaloosa  branch. 

1.  In  considering  this  question,  regard  must  be  had,  however,  to  Acts 
Tenn.,  1849-50,  ch.  266,  sec.  3,  which  provided  ''that  all  branches  of  the 
Nashville  &  Chattanooga  Railroad  Company  as  may  be  made,  shall  have 
all  the  rights  and  privileges,  and  shall  be  placed  in  all  respects  on  the 
same  footing,  with  the  Nashville  &  Chattanooga  road." 

2.  For  discussion  of  this,  see  Riylit  ttf  H'aj/,  Eminent  Dvttmln,  herein. 
Refer  to  index. 

3.  For  right  and  method  of  recondemnation  and  broadening  right  of 
way,  see  index. 

ORIGINAL  CHARTER  OF  THE  SEQUATCHIE 
VALLEY  RAILROAD  COMPANY. 

(Acts  Tenn.,  1868-69,  ch.  11,  p.  93,  sec.  30.) 
[PIKEVILI.E  BRANCH.] 

SEC.  30.  Incorporation,    name,   general   powers.—/?*  it 

•further  enacted,  That  Win.  Pryor,  Adam  L.  Kelly,  Wm.  H. 
Grayson,  Dan  M.  Williams,  -  -  Carpenter,  Henry  Hart,  F.  A. 
Henager,  H.  F.  Bridgeman,  and  C.  C.  Stranahan  be,  and  they 
are  hereby,  created  a  body  corporate  and  politic  under  the  name 


268          ORIGINAL    CHARTER    SEQUATCHIE    VALLEY    BRANCH 

and  style  of  the  Sequatchie  Valley  Railroad  Company,  and  by 
that  name  shall  have  power  to  contract  and  be  contracted  with, 
sue  and  be  sued,  plead  and  be  irnpleaded,  answer  and  be  an- 
swered in  any  court  of  law  or  equity  in  the  state,  and  may  pur- 
chase, hold,  lease,  sell,  and  convey  real  estate  and  personal 
property  to  any  amount  that  may  be  necessary  to  carry  out  the 
objects  herein  contemplated.  They  may  have  and  use  a  com- 
mon seal,  and  alter,  change,  or  abolish  the  same  [at]  pleasure, 
and  have  succession  for  thirty  years. 

1.  Sections  1  to  30  did  not  relate  to  this  road.     Sec.  30  of  the  act  was 
the  commencement  of  the  charter. 

2.  Right  of  way. — As  will  be  noticed,  this  charter  does  not  specifically 
authorize  the  condemnation  of  a  right  of  way,  but  simply  its  purchase. 
The   section  following,  however,  transferred   to   the   company  all   the 
rights,  powers,  and  privileges  of  other  roads  under  the  general  improve- 
ment law.     This  law,  and  the  Acts  of  1849-50,  ch.  72,  sec.  5,  together 
with  the  statutes  set  out  in  the  code  (Shannon's)  \  1844,  authorized  all 
railroad  companies  to  condemn  land  for  a  right  of  way.     See,  also,  Acts 
1849-50.  ch.  266,  sec.  3. 

3.  Another  company  was  chartered  by  Acts  Tenn..  1851-52,  p.  186,  to 
construct  a  railroad  from  Jasper  to  Pikeville,  under  the  name  of  the 
Pikeville   &  Jasper   Railroad   Company,  but  said   company  was   never 
organized. 

SEC.  31.  Route,  powers,  capital  stock,  shares,  elections, 

by-laws. — Be  it  farther  enacted,  That  the  object  of  said  com- 
pany shall  be  to  construct  a  railroad  from  the  town  of  Jasper, 
in  Marion  county,  to  Pikeville,  in  Bledsoe  county;  said  com- 
pany shall  have  and  enjoy  all  the  rights,  powers,  and  privileges, 
and  be  subject  to  the  same  restrictions  and  liabilities,  of  other 
roads  under  the  provisions  of  the  general  internal  improvement 
law.  The  capital  stock  of  said  company  shall  be  five  hundred 
thousand  dollars,  and  may  be  increased  to  one  million  of  dol- 
lars at  pleasure,  which  stock  shall  be  divided  into  shares  of  one 
hundred  dollars  each,  and  when  ten  thousand  dollars  of  bona 
fide  stock  shall  have  been  subscribed,  then  the  stockholders  may 
meet  and  organize  by  the  election  of  a  president  and  such  other 
officers  as  they  may  think  proper,  and  fix  the  salaries  of  the 
same,  and  establish  such  by-laws  as  they  may  think  proper  not 
in  conflict  with  the  laws  and  constitution  of  the  state  or  United 
States. 

This  road,  together  with  its  franchises,  has  been  purchased  by  the 
Nashville,  Chattanooga  «fe  St.  Louis  Railway,  and  now  forms  a  part  of 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         269 

its  general  system.  All  by-laws  are  now  enacted,  directors  elected,  as 
well  as  all  business  transacted,  under  the  charter  of  said  Nashville, 
Chattanooga  «fc  St.  Louis  Railway.  See  charter  in  ch.  1,  herein. 

SEC.  32.  May  unite  with  other  companies,  how.— Beit  fur- 
ther enacted,  That  said  company  may  amalgamate  or  unite  with 
any  other  company,  on  such  terms  as  may  be  agreed  upon  not 
detrimental  to  the  interests  of  the  state;  Provided,  That  no  state 
aid  is  granted  to  said  company.  This  act  to  take  effect  from 
and  after  its  passage.  (Acts  Tenn.,  1868-9,  ch.  11,  p.  93,  sec. 
30;  passed  December  9,  1868.) 


Inman  branch,  how  acquired. — The  road  from  Victoria  to 

Inman,  commonly  known  as  the  "Inman  Branch,"  was  built 
by  the  Tennessee  Coal,  Iron  &  Railroad  Company,  under  its 
charter,  which  authorized  the  building  of  branch  roads  to  con- 
nect its  mines  with  railways.  After  its  completion,  the  said 
Tennessee  Coal,  Iron  &  Railroad  Company,  in  pursuance  of  a 
resolution  of  its  stockholders  and  directors,  sold  this  road,  its 
property,  rights,  privileges,  and  franchises  to  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  on  January  1,  1883.  The  con- 
sideration paid  was  eighty-eight  (88)  $1,000  bonds  of  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway.  A  deed  to  said  road 
is  registered  in  the  register's  office  of  Marion  county,  in  book 
N,  vol.  1,  p.  340-3,  and  which  deed  is  also  inserted  in  the 
next  chapter. 

The  Tennessee  Coal,  Iron  &  Railway  Company  was  chartered  March 
24,  1860,  by  Acts  of  Tennessee,  1859-00,  ch.  198,  p.  582,  and  was  granted 
certain  franchises  in  Alabama,  by  an  act  of  the  legislature  of  that  state, 
passed  February  10,  1893.  The  company  was  chartered  in  Tennessee  as 
the  "Tennessee  Coal  &  Railroad  Company,''  but,  on  September  13,  1881, 
the  charter  was  amended  so  as  to  change  its  name  to  the  Tennessee  Coal, 
Iron  &  Railroad  Company.  The  charter  was  also  amended,  July  16,  1889, 
May  10,  1892,  and  September  12,  1892,  so  as  to  increase  its  capital  stock 
to  $21,000,000,  and  regulating  the  election  of  officers,  etc.  Section  1  of 
its  charter  authorized  it  to  build  railroads  from  any  point  on  the  Nash- 
ville &  Chattanooga  Railroad  to  any  mineral  lands.  Section  2  of  its 
charter  authorized  a  mode  of  condemning  lands.  Section  3  of  its  charter 
authorized  it  to  construct  its  railroad  across  or  along  any  public  road  or 
water  course. 

Purchase  of  this  road  legal. — The  purchase  of  this  road,  franchises, 
etc.,  was  legal  under  Acts  of  Tenn.,  1871,  ch.  69,  which  superseded  the 
Acts  of  Tenn.,  1871,  ch.  22. 


270        DEEDS,    ACTS,    ETC. SEQUATCHIE    VALLEY    BRANCH 


CHAPTER  XXII. 

DEEDS,  ACTS,  ETC.,  RELATING  TO  SEQUATCHIE 
VALLE  Y  BRANCH. 

DEED  OF  TENNESSEE  COAL,,  IRON  &  RAILROAD 

COMPANY  TO  NASHVILLE,  CHATTANOOGA 

&  ST.  LOUIS  RAILWAY  OF  ROAD  FROM 

VICTORIA  TO  INMAN. 

For  and  in  consideration  of  eighty-eight  (88)  bonds  for  one 
thousand  dollars  ($1,000)  each,  numbered  from  one  (1)  to 
eighty-eight  (88)  inclusive,  dated  the  first  day  of  January, 
1883,  and  payable  in  gold  coin  of  the  United  States,  in  New 
York,  forty  years  fiom  said  date,  bearing  interest  at  the  rate 
of  six  per  centum  per  annum  with  coupon  interest  warrants 
attached,  payable  in  New  York  semiannually  in  like  gold  coin 
of  the  United  States,  on  the  first  days  of  January  and  July  of 
each  year,  which  bonds  with  coupons  attached  thereto,  are  in 
the  following  forms — that  is  to  say: 

"  UNITED  STATES  OF  AMERICA. 

"NASHVILLE,  CHATTANOOGA  &  ST.   Louis  RAILWAY. 
"81,000.  FIRST  MORTGAGE.  $1,000. 

"  The  Nashville,  Chattanooga  &  St.  Louis  Railway,  for  value 
received,  promise  to  pay  to  the  Central  Trust  Company  of  New 
York,  or  bearer,  the  sum  of  one  thousand  dollars,  in  gold  coin 
of  the  United  States  of  the  present  standard  of  weight  and 
fineness,  in  the  city  of  New  York,  on  the  first  day  of  January, 
in  the  year  one  thousand  nine  hundred  and  twenty-three,  with 
interest  payable  in  like  gold  coin  of  the  United  States  at  the 
rate  of  six  per  centum  per  annum  on  the  first  days  of  January 
and  July  of  each  year,  upon  the  surrender  of  the  annexed  in- 
terest warrants,  according  to  their  tenor.  The  principal  and 
interest -of  this  bond  is  payable  without  relief  from  valuation 
or  appraisement  laws. 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          271 

"  This  bond  with  others  issued  and  to  be  issued,  is  one  of  a 
series  of  like  date,  tenor,  and  effect,  amounting  in  the  aggre- 
gate to  not  more  than  sixteen  thousand  dollars  on  finished 
railroads,  all  such  bonds  being  equally  secured  by  a  first  mort- 
gage on  the  extension  of  the  Jasi>er  branch  railroad  from  Vic- 
toria to  Inman,  Marion  county,  Tennessee,  and  such  further 
extensions  or  branches  of  said  railroad  as  may  be  hereafter 
constructed  under  the  resolution  of  the  board  of  directors  au- 
thorizing the  construction  of  this  branch,  together  with  all 
their  property,  appurtenances,  and  franchises.  Such  mort- 
gage is  of  even  date  herewith,  executed  and  delivered  unto  the 
Central  Trust  Company  of  New  York  as  trustee,  and  has  been 
duly  recorded  in  each  of  the  counties  of  the  State  of  Tennessee 
where  said  line  of  railroad  is  situated. 

"  This  bond  shall  pass  by  delivery  or  by  transfer  on  the 
books  of  the  said  railway,  at  its  agencies  in  the  city  of  New 
York,  and,  after  any  such  registration  of  ownership  on  the 
books  of  such  agencies,  duly  certified  on  the  back  hereof  by  the 
transfer  agent,  no  transfer  hereof  shall  be  valid  or  pass  any  title 
hereto,  unless  made  in  writing  upon  the  books  of  such  agency, 
unless  the  last  precedent  transfer  has  been  made  to  bearer,  in 
which  event  this  bond  shall  become  thereby  transferable  by  de- 
livery. This  bond  shall  continue  subject  to  successive  registra- 
tions and  transfers  to  bearer  aforesaid,  at  the  option  of  any 
holder  thereof,  in  accordance  with  the  above  provisions.  No 
bond  of  this  series  shall  be  valid  or  obligatory  unless  the  same 
is  duly  authenticated  by  a  certificate,  indorsed  on  the  back 
thereof,  duly  executed  by  the  said  Central  Trust  Company,  as 
trustee. 

u  IN  WITNESS  WHEREOF,  The  said  Nashville,  Chattanooga  & 
St.  Louis  Railway  has  caused  the  foregoing  to  be  attested  by 
its  president  and  secretary,  and  its  corporate  seal  to  be  attached. 

"This,  the  first  day  of  January,  A.D.  1883. 

" —  — ,  Secretary.  — ,  President. 

[Trustee's  Certificate.] 

4 '  It  is  hereby  certified  that  the  within  bond  is  one  of  a  series 
of  bonds  which  are  all  equally  secured  by  the  mortgage  or  deed 


272        DEEDS,    ACTS,    ETC. SEQUATCHIE    VALLEY    BRANCH 

of  trust  mentioned  herein,  and  delivered  to  the  undersigned  as 
trustee.      CENTRAL  TRUST  COMPANY  OF  NEW  YORK,  Trustee. 

1 '  By  -  — ,  President. 

[Form  of  Coupons.] 

"  $30.  The  Nashville,  Chattanooga  &  St.  Louis  Railway  will 
pay  the  bearer  thirty  dollars  in  gold  coin  of  the  United  States,  of 
the  present  weight  and  fineness,  in  the  city  of  New  York,  being 
six  months'  interest  on  its  bond  No. — . 

"R.  C.  BRANSFORD,  Secretary.'1'' 

All  of  which  bonds  have  been  executed  and  delivered  to  the 
Tennessee  Coal,  Iron  &  Railroad  Company,  the  receipt  whereof 
is  hereby  acknowledged.  The  said  Tennessee  Coal,  Iron  & 
Railroad  Company  has  granted,  bargained,  sold,  assigned,  trans- 
ferred, and  conveyed,  and  by  these  presents  does  grant,  bargain, 
sell,  assign,  transfer,  and  convey  unto  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  and  to  its  successor  or  successors 
and  assigns,  forever,  a  certain  railroad,  commencing  at  Victoria, 
Tenn.,  and  running  thence  to  Inman,  Marion  county,  Tenn. , 
about  five  and  one-half  miles,  and  known  as  the  Inman  branch, 
together  with  all  and  singular  the  estate  and  property,  real, 
personal,  and  mixed,  and  all  fixtures,  rights,  privileges,  fran- 
chises and  easements,  and  all  the  tracks,  lines,  rails,  bridges, 
ways,  rights  of  way,  and  materials,  buildings,  piers,  wharves, 
erections,  fences,  walls,  fixtures,  privileges,  rights  and  inter- 
ests, real  estate  of  every  kind  and  character,  and  all  the  tolls, 
incomes,  issues,  and  profits  to  be  had  or  derived  from  the  same, 
or  any  part  or  portion  thereof,  and  all  the  railway  stations 
and  depots,  with  all  the  appurtenances  necessary  and  conven- 
ient for  the  sole,  complete,  and  entire  use  and  operation  of 
said  branch  railroad;  also  all  and  every  other  estate,  interest, 
property,  or  thing,  real,  mixed,  or  personal,  which  the  said 
Tennessee  Coal,  Iron  &  Railroad  Company  owns  or  holds  be- 
longing to,  connected  with,  and  being  part  of,  and  necessary  or 
convenient  for  the  use,  occupation,  operation,  and  enjoyment  of 
said  branch  railroad  and  property,  rights,  privileges,  and  fran- 
chise, or  any  part  or  portion  thereof;  and  also  all  the  rights 


NASHVILLE,    CHATTANOOGA    <fe    ST.     LOUIS    RAILWAY.          273 

and  privileges  to  use  the  said  roadbed,  tracks,  sidings,  turn- 
outs, and  switches  constructed  at  the  execution  of  these  pres- 
ents. 

To  have  and  to  hold  the  said  railroad  and  appurtenances  and 
estate,  property,  rights,  privileges,  franchises,  and  interest  above 
conveyed  or  transferal,  or  intended  so  to  be,  together  with  all 
and  singular  the  emoluments,  incomes,  and  advantages,  tene- 
ments and  hereditaments,  and  appurtenances  thereto  belonging, 
or  in  anywise  appertaining,  and  the  reversion  and  reversions, 
remainder  and  remainders,  rents,  issues,  and  profits  thereof, 
unto  the  said  Nashville,  Chattanooga  &  St.  Louis  Railway,  its 
successors  and  assigns,  in  fee  simple. 

The  Tennessee  Coal,  Iron  &  Railroad  Company  covenants 
that  it  is  lawfully  seized  of  said  properties,  has  a  good  right  to 
convey  them,  and  that  the  same  is  unincumbered,  and  further 
covenants  and  binds  itself  and  its  successors  that  it  will  warrant 
and  defend  the  title  to  the  said  properties  to  the  said  Nashville, 
Chattanooga  &  St.  Louis  Railway,  its  successors  and  assigns, 
against  the  lawful  claims  of  all  persons. 

In  witness  whereof,  the  said  Tennessee  Coal,  Iron  &  Rail- 
road Company,  in  pursuance  of  authority  given  by  the  board 
of  directors,  has  caused  this  indenture  to  be  signed  by  its  presi- 
dent and  secretary,  and  the  corporate  seal  of  the  company  to 
be  affixed  hereto  the  interlineation  on  the  first  page,  and  seventh 
line  from  the  bottom,  being  first  made  before  signature.  This 
first  day  of  January,  1883. 

TENNESSEE  COAL,  IRON  &  RAILROAD  COMPANY, 

[SEAL.]  By  JAMES  C.  WARNER,  President, 

JAMES  BOWRON,  Secretary. 

The  above  deed  was  properly  acknowledged  and  registered  in  the 
register's  office  of  Marion  county,  in  book  N,  vol.  1,  pp.  340-343. 

DEED  OF  SEQUATCHIE  VALLEY  RAILROAD 
COMPANY  TO  NASHVILLE,  CHATTANOOGA 
&  ST.  LOUIS  RAILWAY,  OF  ROAD  FROM  JAS- 
PER TO  VICTORIA  AND  RIGHT  TO  BUILD  TO 
PIKEVILLE. 

WHEREAS,  By  virtue  of  a  resolution  passed  by  the  stock- 
is 


274    DEEDS,  ACTS,  ETC. SBQUATCHIE  VALLEY  BRANCH 

holders  of  the  Sequatchie  Valley  Railroad  Company,   in  words 
and  figur.es  as  follows: 

Re-wlved,  That  the  Sequatchie  Valley  Railroad  Company 
does  hereby  bargain  and  sell  the  railroad  track,  franchises, 
rights  of  way,  and  any  or  all  other  property  belonging  to  this 
company,  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway, 
and  we  do  authorize  and  empower  the  president  to  sign  all  or 
any  necessary  papers  to  carry  out  this  resolution,  provided 
said  Nashville,  Chattanooga  &  St.  Louis  Railway  will  assume 
to  pay  all  the  liabilities- of  this  company,  supposed  to  amount 
now  to  the  sum  of  about  seventy-five  thousand  dollars;  and, 

WHEREAS,  Said  Nashville,  Chattanooga  &  St.  Louis  Railway 
Company  has  this  day  assumed  all  the  liabilities  of  this  com- 
pany : 

Now,  by  virtue  of  the  power  in  me  vested,  I  do  hereby  bar- 
gain, sell,  alien,  and  convey  to  said  Nashville,  Chattanooga 
&  St.  Louis  Railway  the  railroad  track,  roadbed,  right  of  way, 
franchises,  and  any  or  all  other  property  belonging  to  said 
Sequatchie  Valley  Railroad  Company,  in  as  full,  ample,  and 
complete  a  manner  as  I  or  said  company  may  or  can  do. 

In  testimony  whereof,  1  have  hereunto  set  the  corporate 
name  of  said  company  by  myself  as  president. 

This  twenty-seventh  day  of  January,  1877. 

SEQUATCHIE  VALLEY  RAILROAD  COMPANY, 
By  W.  J.  KELLY,  President. 

We  hereby  approve  of  the  sale  of  the  Sequatchie  Railroad 
to  the  Nashville,  Chattanooga  &  St.  Louis  Railway. 

J.  P.  WILLIAMS, 
JAMES  S.  LIPSCOMB, 
Stockholder*. 

The  above  deed  was  properly  acknowledged  and  registered  in  the 
register's  office  of  Marion  county,  in  book  L,  vol.  1,  p.  30S. 

Road  from  state  line  to  Jasper  authorized  to  be  constructed 
by  Tennessee  Legislature,  how,  state  aid  to. 

SEC.  3.  Hi'  if  further  enacf<.-d,  That  of  the  state  aid  hereto- 
fore granted  to  the  Memphis  &  Charleston  Railroad  Company, 
for  the  purpose  of  extending  said  railroad  from  Stevenson  to 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         275 

Chattanooga,  on  the  north  side  of  Tennessee  river,   Roa(J  to 
the  sum  of  ten  thousand  dollars  per  mile,  be,  and  J*sper- 
the  same  is  hereby,  transferred  and  granted  to  the  Nashville 
&  Chattanooga  Railroad  Company,  for  the  purpose    of   con- 
structing a  branch  railroad  from  Bridgeport,  or  some  suitable 
point  on  the  Nashville  &  Chattanooga  Railroad,  to  some  point 
on  the  line  of  the  extension  of  said  Memphis  &  Charleston  Rail- 
road, the  same  not  to  extend  beyond  the  town  of  Jasper,  in 
Marion  county,  with  the  same  liens  retained  to  the  state  as  are 
provided  for  in  said  act. 

The  act  above  referred  to  granting-  aid  to  the  Memphis  &  Charleston 
Railroad  Company  was  Acts  Tenn.,  1853-54,  ch.  311. 

SEC.  4.    Be  it  further  enacted,  That  in  case  the  Nashville  & 
Chattanooga  Railroad  Company  shall  fail  or  refuse  ,fN  &c  R  R 
to  construct  said  branch  road,  the  same  powers  and  Jrivuege  to"' 
privileges  be,  and  the  same  are  hereby,  granted  to       *  C-  R' R' 
the  Memphis  &  Charleston  Railroad  Company;  and  either  of 
said  companies  agreeing  to  construct  said  branch  road  as  above 
provided,  is  hereby  authorized  to  increase  its  capital  stock  to 
an  amount  sufficient,  with  the  state  aid,  to  construct  said  branch 
road. 

SEC.  5.  Be  It  further  enacted,  That  if  both  of  said  railroad 
companies  shall  fail  or  refuse  to  agree  to  construct  said  branch 
road  within  twelve  months  after  the  passage  of  this  ir  both  refuse. 

to  J  J  &  C   R 

act,  then  said  state  aid,  together  with  the  powers  R. Co.' 
and  privileges  above  conferred,  be,  and  the  same  are  hereby, 
transferred  and  granted  to  the  Junction,  Jasper  &  Chattanooga 
Railroad  Company.  Said  branch  road  in  no  event  to  extend 
beyond  said  town  of  Jasper.  (Acts  Tenn.,  1857-58,  ch.  161; 
passed  March  20,  1858.) 

Jasper  branch,  from  Bridgeport  to  state  line,  authorized  to  be 
constructed  in  Alabama,  with  rights,  powers,  and  privi- 
leges of  main  line. 

SECTION  1.  Be  it  enacted  by  the  Senate  and  Howe  of  Rep- 
resentative* of  the  State  of  Alabama,  in  General  Assembly  con- 
vened, That  an  act  granting  the  right  of  way  to  the  Nashville  & 
Chattanooga  Railroad  Company  through  Jackson  county,  and 


276    DEEDS,  ACTS,  ETC. SEQUATCHIE  VALLEY  BRANCH 

the  privilege  of  constructing  a  bridge  across  Tennessee  river 
in  said  county,  approved  January  21,  1850,  be  so  amended  that 
the  Nashville  &  Chattanooga  Railroad  Company  shall  have  the 
right  to  construct  and  operate  a  branch  of  their  road  from  a 
point  on  the  line  of  their  road  at  or  near  Bridgeport,  in  Jack- 
son county,  to  the  Tennessee  state  line,  in  a  direction  to  Jasper, 
Tenn. ,  with  all  the  rights,  powers,  and  privileges  pertaining  to 
the  main  line,  and  subject  to  the  same  liabilities  and  restric- 
tions. (Acts  of  Ala.,  1859-60,  No.  216.) 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS   RAILWAY.         277 


CHAPTER   XXIII. 

TRACY  CITY  BRANCH. 
(SEWANKK  BRANCH.) 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— On  January  1,  1887,  the  Tennessee  Coal,  Iron  &  Rail- 
road Company,  in  pursuance  of  a  resolution  of  its  stockholders, 
adopted  October  12,  1886,  conveyed  to  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  the  railroad,  telegraph  lines,  fran- 
chises, etc.,  of  what  is  now  known  as  the  Tracy  City  branch. 
The  road  commences  at  a  point  in  Franklin  county,  on  the  main 
line  of  the  vendee  company,  known  as  the  "V,"  just  west  of 
the  entrance  to  the  tunnel  under  Cumberland  mountains,  and 
runs  thence  up  the  west  side  of  the  said  mountain,  through  Se- 
wanee,  to  Tracy  City,  a  distance  of  about  eighteen  miles.  The 
consideration  paid  was  six  hundred  one  thousand  dollar  bonds, 
of  which  number,  however,  one  hundred  were  to  be  retained  by 
the  Nashville,  Chattanooga  &  St.  Louis  Railway,  and  appro- 
priated to  the  improvement  and  equipment  of  the  road.  A 
deed  to  said  road,  properties,  franchises,  etc.,  is  registered  in 
the  register's  office  of  Franklin  county,  in  book  12,  pp.  501- 
503;  in  Grundy  county,  in  book  H,  p.  599;  in  Marion  county, 
in  bookQ,  p.  404.  Said  deed  is  also  inserted  herein.  See  next 
chapter. 

The  road  was  originally  built  by  the  Sewanee  Mining  Com- 
pany, a  corporation  chartered  by  Acts  Tennessee,  1851-52, 
ch.  284,  p.  521,  sec.  .7,  and  which  charter  was  amended  by 
Acts  Tennessee,  1853-54,  ch.  298,  p.  t>20,  so  as  to  authorize 
the  company  "to  construct  a  railroad  or  roads,  with  one  or 
more  tracks, 'to  be  used  with  steam,  animal,  or  other  power, 
from  any  point  or  points  on  the  Nashville  &  Chattanooga  Rail- 
road to  any  or  all  the  coal  mine  or  lands  now  owned,  or  that 


ABSTRACT    OF    TITLE    TO    TRACY    CITY    BRANCH 

may  hereafter  be  owned,  by  said  Sewanee  Mining  Company, 
on  the  Cumberland  mountains,'"  etc. 

After  its  construction,  a  suit  was  filed  by  Thos.  Richardson 
against  the  company,  in  the  circuit  court  of  the  United  States 
at  Nashville,  Tenn.,  and  judgment  was  rendered  in  his  favor 
for  a  large  amount.  J.  B.  Clement,  the  United  States  marshal, 
having  the  writ,  levied  upon  this  railroad  and  other  real  estate 
of  the  company,  to  satisfy  the  judgment.  At  the  sale  that  fol- 
lowed, Thomas  Richardson  became  the  purchaser  of  the  road, 
franchises,  etc.,  and  a  deed  was  duly  executed  to  him  on  May 
15,  1860,  and  registered  in  the  register's  office  of  Franklin 
county,  in  book  Z,  p.  290;  in  Marion  county,  in  book  H,  p.  487. 

Thomas  Richardson  conveyed  the  road,  franchises,  etc.,  to 
John  Cryder,  on  June  19,  1860,  a  deed  to  which  is  registered 
in  the  register's  office  of  Franklin  county,  in  book  1,  p.  26;  in 
Marion  county,  in  book  H,  p.  598;  Grundy  county,  in  book  D, 
p.  531. 

John  Cryder,  Jno.  G.  Dale,  A.  S.  Colyar,  A.  M.  Rutledge, 
B.  F.  McGee,  E.  F.  Colyar,  E.  L.  Best,  Jno.  A.  L.  Best,  and 
Samuel  Best,  subsequently  conveyed  the  road,  franchises,  etc., 
to  the  Tennessee  Coal  &  Railroad  Company,  on  August  31, 
1866,  under  an  agreement  to  pool  their  interests  and  form  a 
new  company  (which  agreement  is  incorporated  in  the  deed). 
A.  S.  Colyar  and  the  other  conveyors  joined  in  the  deed  with 
John  Cryder,  as  they  had  acquired  an  interest  by  virtue  of  some 
judgments  secured  against  the  Sewanee  Mining  Company,  and 
this  deed  and  agreement  was  made  as  a  settlement  of  all  matters 
between  them.  The  deed  is  registered  in  the  register's  office  of 
Franklin  county,  in  book  2,  p.  362;  in  Marion  county,  in  book 
I,  p.  158;  in  Grundy  county,  in  book  E,  pp.  424-432. 

Subsequently,  the  Tennessee  Coal  &  Railroad  Company,  that 
had  in  the  meantime  changed  its  name  to  the  Tennessee  Coal, 
Iron  &  Railroad  Company,  conveyed  the  road,  franchises,  etc. , 
to  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  as  hereto- 
fore explained. 

1.  The  Tennessee  Coal  A  Railroad  Company  was  chartered  by  Acts 
Tenn.,  1859-60,  ch.  198,  p.  582,  approved  March  24,  1860.  It  was  also 
granted  certain  rights  in  Alabama  by  act  passed  February  10,  1893. 


NASHVILLE,    CHATTANOOGA   <fe    ST.    LOUIS    RAILWAY.         279 

On  September  13,  1881,  its  charter  was  amended  in  Tennessee  so  as  to 
change  its  name  to  the  Tennessee  Coal,  Iron  &  Railroad  Company.  See 
notes  to  Inman  branch,  a  part  of  Sequatchie  Valley  branch,  herein. 

2.  Legality  of  purchase  of  road. — The  purchase  of  this  road,  fran- 
chises, etc..  was  legal  under  Acts  Tenn.,  1871,  ch.  69,  which  superseded 
the  Acts  of  1871,  ch.  22. 

Width  Of  right  Of  way. — The  width  of  the  right  of  way  on 
this  branch  is  fifty  feet  on  each  side  of  the  center  of  the  track, 
save  at  a  point  near  Monteagle,  described  in  the  deed,  as  will 
fully  appear  from  the  deed  to  the  same,  which  is  set  out  in  the 
next  chapter. 

For  right  to  take  more  than  fifty  feet  for  right  of  way  when  neces- 
sary for  railway  purposes,  see  Eminent  Domain,  Rlijht  of  Way.  herein. 
Refer  to  index. 

Distance  built  when  road  purchased.— The  entire  line  from 

Tracy  City  to  the  main  branch  of  the  Nashville,  Chattanooga 
&  St.  Louis  Railway  was  constructed  when  the  road  was  pur- 
chased by  the  latter  company. 

What  franchises  passed  under  the  sale.— in  addition  to  the 

other  property  therein  conveyed,  the  deed  specifically  trans- 
ferred and  conveyed  all  the  rights,  franchises,  etc.,  of  the  com- 
pany, including  the  telegraph  line.  By  Acts  Tenn.,  1853-54, 
ch.  298,  p.  620,  heretofore  referred  to  as  amending  the  charter 
of  the  Sewanee  Mining  Company,  the  said  company  was  allowed 
to  build  the  road,  and  for  such  purpose  was  allowed  to  purchase, 
have,  and  hold  in  fee  simple,  or  for  a  term  of  years,  any  real 
estate.  In  addition,  by  sec.  2  of  said  act,  it  was  allowed  to 
condemn  property  for  a  right  of  way  or  for  materials  to  build 
or  repair  the  same,  in  a  method  therein  set  out;  and  by  sec.  3 
it  was  authorized  to  construct  its  road  across  or  along  any  public 
road  or  water  course. 


280  DEED    TO    TRACY    CITY    BRANCH 


CHAPTER   XXIV. 

DEED  TO  TRACY  CITY  BRANCH. 

DEED. 

TENNESSEE  COAL,   IRON  &  RAILWAY  COMPANY,      j 

TO — Deed. 
NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY.  ) 

WHEREAS,  By  resolution  adopted  at  a  meeting  of  the  stock- 
holders of  the  Tennessee  Coal,  Iron  &  Railroad  Company,  held 
on  the  twelfth  day  of  October,  1886,  directing  the  president 
and  directors  of  said  company  to  sell,  alien,  and  convey,  by 
proper  instruments,  conveyances,  certain  properties  of  said 
company,  hereinafter  described,  to  the  Nashville,  Chattanooga 
&  St.  Louis  Railroad,  each  being  corporations  chartered  under 
the  laws  of  the  State  of  Tennessee,  which,  among  other  things, 
provided  that  the  said  Tennessee  Coal,  Iron  &  Railway  Com- 
pany would  sell,  and  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  Company  would  purchase,  all  the  property  hereinafter 
mentioned  for  the  consideration  hereinafter  set  out: 

Now,  therefore,  by  virtue  of  the  power  vested  in  us  by  the 
stockholders  and  directors  and  all  other  officers  of  the  Ten- 
nessee Coal,  Iron  &  Railroad  Company  aforesaid,  the  Tennessee 
Coal,  Iron  &  Railroad  Company  have  this  day  bargained  and 
sold,  and  do  by  these  present  alien,  confirm,  and  convey  to  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  Company,  its  suc- 
cessors and  assigns  forever,  all  the  railroad,  beginning  in 
Franklin  county,  State  of  Tennessee,  at  the  point  of  its  con- 
nection with  the  main  track  of  the  Nashville,  Chattanooga  & 
St.  Louis  Railway  at  a  point  known  as  the  "  V, "'  just  west  of 
the  entrance  to  the  tunnel  under  Cumberland  mountain,  and 
running  thence  up  the  west  side  of  said  mountain  to  Sewanee 
on  the  top  of  said  mountain,  and  thence  by  Monteagle  to  Tracy 
City,  a  distance  of  about  eighteen  miles,  lying  and  being  in  the 


NASHVILLE,    CHATTANOOGA   &    ST.    LOUIS    RAILWAY.         281 

counties  of  Franklin,  Marion,  and  (irundy,  together  with  all 
the  roadways,  tracks,  su[>erstructures,  rails,  sidings,  switches, 
turnouts,  walls,  fences,  rights  of  way,  cross-ties,  lain  or  on  the 
sides,  depot  houses  and  station  houses,  engine  house,  car  house, 
freight  house,  sheds,  buildings  and  repair  shops,  depot,  land 
and  ground  provided  and  used  for  siding,  excluding  what  is 
known  as  the  Rattlesnake  branch  and  its  switches  and  sidings, 
running  from  Tracy  City  to  Rattlesnake  mines,  northeast  from 
Tracy  City,  and  including  all  other  property  of  said  company 
not  excluded  herein.  A  plan  of  said  railroad  has  been  pre- 
pared and  mapped,  and  the  same  is  here  specifically  referred 
to  and  adopted,  and  the  same  is  made  a  part  of  this  deed,  and 
said  right  of  way  for  said  road  is  fifty  feet  on  either  wldth  of 
side  of  the  center  of  said  track  between  its  termini,  rlght  of  wty- 
except  at  a  point  near  Monteagle,  between  the  fourth  and  fifth 
mile  from  Tracy  City,  viz. :  From  the  point  where  Holmes' 
track  joins  the  railroad  on  the  south  side  to  where  the  west 
boundary  of  Summer's  track  crosses  the  track,  as  indicated  by 
a  rock,  and  the  same  is  shown  on  said  map,  and  opposite  the 
lands  of  Keith  Bennett  and  Holmes,  as  shown  on  sides. 

Also  the  following  right  of  way  in  Tracy  City:  Right  of  way 
for  Nashville  &  Chattanooga  Railway  in  Tracy  City,  beginning 
at  the  southwest  corner  of  lot  No.  288,  50  feet  from  the  center 
of  the  track;  thence  north  58"  15"  east  332.1  feet  to  a  stake 
opposite  St.  Clair  street;  thence  north  52'  20"  east  207.2  feet 
to  a  stake  on  the  culverts;  thence  north  45'  45"  east  216.7  feet 
to  a  stake;  thence  north  36'  52"  east  105.2  feet  to  a  cross  on 
sand  rock;  thence  north  27'  55"  east  278.5  feet  to  a  stake  near 
the  west  side  of  the  Tennessee  Coal,  Iron  &  Railway  Company 
store;  thence  south  6-4'  13"  east  35  feet  to  a  stake  15  feet  from 
the  center  of  track;  thence  north  21'  47"  east  55  feet  to  a  stake 
15  feet  from  the  center  of  the  track;  thence  north  50'  .01"  west 
35  feet  to  a  stake  near  the  east  side  of  store,  and  50  feet  from 
the  center  of  track;  thence  north  15'  39"  east  168.3  feet  to  a 
stake  5  feet  past  the  northwest  corner  of  the  old  depot,  and  50 
feet  from  the  center  of  the  track;  thence  north  5'  55"  east  290.6 
feet  to  a  stake;  thence  north  13'  24"  east  274.4  feet  to  a  stake 


282  DEED    TO    TRACY    CITY    BRANCH 

near  south  line  of  Bersheba  street;  thence  north  22'  39.2"  east 
207.6  feet  to  a  stake;  thence  north  11'  53"  east  161.7  feet  to  a 
stake  near  south  line  of  Coke  street;  thence  north  63'  43"  west 
18.2  feet  to  a  stake  50  feet  from  center  of  track;  thence  north 
15'  16"  east  366.3  feet  to  a  stake;  thence  north  9'  52"  east  639.5 
feet  to  a  stake  6  feet  to  west  of  center  of  coke-oven  track; 
thence  north  3'  47"  east  366.3  feet  to  a  stake  near  the  lower 
end  of  coke-oven;  thence  north  17'  48"  east  550.1  feet  to  a 
stake  at  upper  end  of  coke-oven  track,  west  side;  thence  south 
30'  .07"  east  17.3  feet  to  a  stake  on  the  east  side  of  said  track; 
thence  south  16'  55"  west  619.5  feet  to  a  stake  4.5  feet  east  of 
center  of  coke-oven  track;  thence  south  79'  19"  east  87.5  feet 
to  a  stake  50  feet  to  west  of  center  of  main  track;  thence  north 
25'  21"  east  255.2  feet  to  a  stake  5  feet  west  of  center  of  track; 
thence  north  8'  37"  east  575.2  feet  to  a  stake  under-  — ; 
thence  north  23'  45"  east  356.4  feet  to  stake  near  head  of  cut, 
and  4. 5  feet  to  west  of  center  of  track;  thence  north  84' .  07"  east 
39.4  feet  to  stake  on  bank;  thence  south  15' 36"  west  809.8 
feet  to  stake  7.5  feet  to  east  of  center  of  track;  thence  south 
14'  46"  east  195.9  feet  to  stake;  thence  south  12'  36"  west  80 
feet  to  stake;  thence  75'  27"  east  165  feet  to  stake;  thence  south 
15'  33"  west  565. 1  feet  to  stake;  thence  south  39'  50"  west  474.5 
feet  to  stake  50  feet  to  east  of  center  of  track,  passing  the 
northwest  corner  of  Terrill's  fence  at  70  feet;  thence  south  12' 
.09"  west  117.3  feet  to  stake  near  the  company's  stable,  and  50 
feet  to  east  of  the  center  of  track;  thence  south  18'  .09"  west 
647.2  feet  to  stake  in  road  opposite  the  company's  store  and 
50  feet  to  east  of  center  of  track;  thence  south  26'  21"  west 
144.8  feet  to  a  stake  in  the  sawmill  yard,  and  50  feet  from  the 
center  of  the  Nashville  &  Chattanooga  track,  crossing  the  Rat- 
tlesnake switch  at  60  feet;  thence  south  53'  15"  east  318.5  feet 
to  stake  in  the  center  of  the  stable,  branch,  or  creek;  thence 
south  23'  53"  west  257.9  feet  to  stake  on  the  east  bank  of  said 
branch,  and  near  its  junction  with  a  small  branch  from  under 
the  railway;  thence  north  68'  west  80  feet,  crossing  said  small 
branch  at  40  feet;  thence  69'  17"  west  171.7  feet  to  a  stake  at 
northeast  corner  of  lot  No.  36;  thence  west  with  an  easterly 


NASHVILLE,    CHATTANOOGA    <fe    ST.     LOUIS    RAILWAY.          283 

variation  of  45"  with  line  of  said  lot,  130.1  feet  to  a  stake  at 
the  corner  of  said  lot;  thence  south  57'  30"  west  with  the  varia- 
tion of  340.9  feet,  to  stake  in  line  of  Sixth  street  at  corner  of 
lot  No.  34. 

Also    all    locomotives,    tenders,     passenger,    baggage,    and 
other  cars,  except  engines  No.  2,  4,  and  5,  and  their  equip- 
ments, and  all  rolling  stock  and  equipments,  all   machinery, 
tools,  implements,  rails,  chairs,  and  spikes  and  material,  what- 
soever, and  all  rights,  privileges,  franchises,  and  Franchlses 
hereditaments  and  appurtenances,  connected  there-  pass> 
with  and  necessary  to  the  proper  use  of  said  road  and  its  fran- 
chises heretofore  used  in  the  operation  of  said  road. 

Also  the  telegraph  line  running  from  the  l>eginning  of  said 
road,  at  the  tunnel  aforesaid,  at  or  near  the  town  of  Cowan,  in 
Franklin  county,  to  Tracy  city,  in  the  county  of  Tele-raph 
Grundy,  including  posts,  seal  or  unseal,  all  right  of  llne- 
way,  all  wires,  batteries,  fixtures  or  appurtenances,  offices  and 
furniture,   together  with  all  the  rights,  privileges,   and  fran- 
chises, appertaining  or  belonging  to  said  telegraph  line. 

To  have  and  to  hold  to  the  said  Nashville,  Chattanooga  &  St. 
Louis  Railway,  all  the  property,  real  or  personal,  franchises, 
rights,  appurtenances  and  privileges  thereto  appertaining  and 
belonging,  as  hereinbefore  specified,  mentioned,  described,  or 
referred  to,  its  assigns,  vendors,  or  successors,  forever.  And  the 
Tennessee  Coal,  Iron  &  Railway  Company  covenants  with  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  Company,  its  as- 
signs, vendors,  and  successors,  that  it  is  lawfully  seized  and 
possessed  of  all  of  said  property,  and  that  it  has  a  good  right 
to  convey  the  same  in  fee  simple  and  absolutely,  as  set  out 
herein,  and  that  the  same  is  free  from  all  liens,  mortgages,  and 
other  incumbrances  whatever,  in  every  part  and  in  every 
respect,  and  the  said  Tennessee  Coal,  Iron  «Sc  Railroad  Company 
binds  itself  to  the  Nashville,  Chattanooga  &  St.  L:>uis  Railway, 
its  assigns,  vendors,  and  successors,  to  forever  warrant  and  de- 
fend the  title  to  each  and  every  j>art  and  parcel  of  the  property, 
real  or  personal,  hereinbefore  described,  referred  to,  or  men- 
tioned as  passing  by  this  deed. 


284  DEED    TO    TRACY    CITY    BRANCH 

In  consideration  of  the  premises  and  conveyances  hereinbe- 
fore had  and  made,  the  Nashville,  Chattanooga  &  St.  Louis 
Kailway  has  executed  the  following  described  six  per  cent,  per 
annum  coupon  bonds  of  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  being  six  hundred  in  number,  each  one  thousand  dol- 
lars, and  secured  by  first  lien  upon  the  road,  property,  and 
franchise,  hereinbefore  described,  each  dated  January  1,  1887, 
with  coupon  due  January  1,  1888,  and  all  subsequent  coupons 
attached,  both  principal  and  interest,  payable  in  lawful  money 
of  the  United  States,  in  New  York  city,  coupons  payable  Jan- 
uary and  July  for  each  successive  year,  of  which  the  Tennessee 
Coal,  Iron  &  Railway  Company  have  received  the  following 
five  hundred  bonds,  and  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  may  sell  the  other  hundred,  appropriate  the  proceeds 
to  the  improvement  and  equipment  of  said  road  and  property: 
Twenty  bonds  of  $1,000  each,  numbered  from  1  to  20,  and 
due  January  1,  1892;  twenty  of  $1,000  each,  numbered  from 
21  to  40,  and  due  January  1,  1893;  twenty  bonds  of  $1,000 
each,  numbered  from  41  to  60,  and  due  January  1,  1894; 
twenty  bonds  of  $1,000  each,  numbered  from  61  to  80,  and 
due  January  1,  1895;  twenty  bonds  of  $1,000  each,  numbered 
from  81  to  100,  and  due  January  1,  1896;  twenty  bonds  of 
$1,000  each,  numbered  from  101  to  120,  and  due  January  1, 
1897;  twenty  bonds  of  $1,000  each,  numbered  from  121  to 
140,  and  due  January  1,  1898;  twenty  bonds  of  $1,000  each, 
numbered  from  141  to  160,  and  due  January  1,  1899;  twenty 
bonds  of  $1,000  each,  numbered  from  161  to  180,  and  due 
January  1,  1900;  twenty  bonds  of  $1,000  each,  numbered 
from  181  to  200,  and*  due  January  1,  1901;  twenty  bonds  of 
$1,000  each,  numbered  from  201  to  220,  and  due  January  1, 
1902;  twenty  bonds  of  $1,000  each,  numbered  from  221  to  240, 
and  due  January  1,  1903;  twenty  bonds  of  $1,000  each,  num- 
bered from  241  to  260,  and  due  January  1,  1904;  twenty  bonds 
of  $1,000  each,  numbered  from  261  to  280,  due  January  1,  1905; 
twenty  bonds  of  $1,000  each,  numbered  from  281  to  300,  and 
due  January  1,  1906;  twenty  bonds  of  $1,000  each,  numbered 
from  301  to  320,  due  January  1,  1907;  twenty  bonds  of  $1,000 


NASHVILLE,    CHATTANOOGA    <fc    ST.    LOUIS    RAILWAY.         285 

each,  numbered  from  321  to  340,  due  January  1,  1908:  twenty 
bonds  of  $1,000  each,  numbered  from  341  to  360,  due  Janu- 
ary 1,  1909;  twenty  bonds  of  $1,000  each,  numbered  from 
361  to  380,  due  January  1,  1910;  twenty  bonds  of  $1,000 
each,  numbered  from  381  to  400,  due  January  1,  1911;  twenty 
bonds  of  $1,000  each,  numbered  from  401  to  420,  and  due  Jan- 
uary 1,  1912;  twenty  bonds  of  $1,000  each,  numbered  from 
421  to  440,  due  January  1',  1913;  twenty  bonds  of  $1,000 
each,  numbered  from  441  to  460,  due  January  1,  1914;  twenty 
bonds  of  $1,000  each,  numbered  from  461  to  480,  and  due 
January  1,  1915;  twenty  bonds  of  $1,000  each,  numbered 
from  481  to  500,  and  due  January  1,  1916;  and  one  hundred 
of  said  bonds  are  numbered  from  501  to  6<>0  inclusive,  and  due 
January  1,  1917.  This  January  1,  1887. 

TENNESSEE  COAL,  IRON  &  RAILROAD  COMPANY, 
[SEAL.]  By  NATHANIEL  BAXTER,  JR.,  President. 

By  G.  W.  McCoiiMACK,  Secretary  pro  tempwe. 

The  above  deed  was  properly  acknowledged  and  registered  in  the 
register's  office  of  Franklin  county,  in  book  12,  p.  501-3;  in  Grundy 
county,  in  book  H,  p.  599;  in  Marion  county,  in  book  Q,  p.  404. 


286  ABSTRACT    OF    TITLE    SHELBYVILLE    BRANCH 


CHAPTER    XXV. 

SHELBYVILLE  BRANCH. 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Railway. 

—What  is  known  as  the  Shelbyville  branch — that  is,  the 
branch  from  Wartrace  to  Shelbyville — was  built  by  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  under  and  pursuant  to 
an  act  of  the  legislature  of  the  State  of  Tennessee,  1849-50, 
ch.  266,  sec.  3,  passed  January  19,  1850.  The  act  referred  to 
provided,  among  other  things,  that  "the  Shelbyville  branch, 
and  such  other  branches  of  the  Nashville  &  Chattanooga  road 
as  may  be  made,  shall  have  all  the  rights  and  privileges,  and 
shall  be  placed  in  all  respects  on  the  same  footing  with  the 
Nashville  &  Chattanooga  road." 

The  road  was  built  about  —          —  day  of  -          — ,  18 — . 

Width  Of  right  Of  Way. — Inasmuch  as  the  above  act  con- 
ferred upon  this  branch  all  the  rights  and  privileges,  and  placed 
it  in  all  respects  upon  the  same  footing  with  the  Nashville  & 
Chattanooga  road,  its  width  of  right  of  way  must  now  be  de- 
termined by  the  provisions  of  sees.  24  and  25  of  the  charter 
of  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  which 
give  one  hundred  feet  on  either  side  of  the  center  of  the  road, 
in  the  absence  of  any  contract  with  the  original  landowner  to 
the  contrary.  For  charter  of  Nashville,  Chattanooga  &  St. 
Louis  Railway,  see  ch.  1,  herein. 

For  a  general  discussion  of  this  and  kindred  subjects,  together  with 
the  right  and  method  of  taking  more  than  two  hundred  feet,  when  nec- 
essary, for  railroad  purposes,  see  Eminent  Do/nmu,  Riyld  of  Way,  herein. 
Refer  to  index. 


N  \-HVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          287 


CHAPTER  XXVI. 

TENNESSEE  A  COOS  A   RAILROAD  COMPAXV. 

llKANc  Il.| 


How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way. —  On  April  6,  1891,  the  Tennessee  &  Coosa  Railroad 
Company,  in  pursuance  of  the  respective  resolutions  of  its 
directors  arid  stockholders,  passed  in  the  city  of  Huntsville, 
Alabama,  on  the  thirty-first  day  of  March,  1891,  sold  its  road, 
property,  franchise*,  etc.,  to  the  Nashville,  Chattanooga  &  St. 
Louis  Railway.  The  consideration  paid  was  the  cancellation  of 
a  debt  of  over  four  hundred  thousand  dollars,  due  by  the  said 
Tennessee  &  Coosa  Railroad  Company  to  the  said  Nashville, 
Chattanooga  &  St.  Louis  Railway;  the  further  cancellation  of 
one  hundred  and  five  thousand  dollars  of  the  first  and  only 
mortgage  bonds  of  the  Tennessee  &  Coosa  Railroad  Company, 
which  bonds  were  held  and  owned  by  the  Nashville,  Chattanooga 
&  St.  Louis  Railway;  and  the  agreement  on  the  part  of  the 
said  Nashville,  Chattanooga  <fc  St.  Louis  Railway  that  it  would 
pay  to  each  stockholder  of  said  vendor  company  the  par  value 
of  his  stock  on  surrender  of  the  certificate  thereof,  and  com- 
plete the  line  of  road  to  a  point  at  or  near  Gunter's  landing, 
on  the  Tennessee  river,  and  thence  across  said  river  to  some 
point  on  its  line  of  railroad  north  of  said  river,  so  as  to  form  a 
continuous  line  of  road  from  Gadsden,  Alabama,  to  Nashville, 
Tennessee.  The  deed  of  conveyance  is  registered  in  the  judge 
of  probate  court  of  Marshall  county,  in  book  S,  pp.  277-289; 
in  Etowah  county,  in  book  31,  p.  366.  Said  deed  is  also  set 
out  herein  in  next  chapter. 

1.  Previous  conveyances.  —  A  deed  had  previously  been  executed  to 
the  road,  franchises,  etc.,  by  the  said  Tennessee  «fe  Coosa  Railroad  Com- 
pany, which  deed  was  'registered  in  the  judge  of  probate  court  of  Mar- 
shall county,  in  book  S.  pp.  -'SO-'.i.'W,  and  in  Etowah  county,  in  book  U, 
pp.  304-308.  This  deed  was  corrected  and  supplanted,  however,  by  the 
one  referred  to  above. 


288         ABSTRACT  OF  TITLE  GADSDEN  BRANCH 

2.  The  road  has  been  completed  from  Gadsden  to  Huntsville.  thus  form- 
ing- a  continuous  line,  with  the  Huntsville  &  Elora  branch  and  the  main 
line,  to  Nashville,  as  provided  for  in  the  deed. 

3 .  Legality  of  the  sale.  — There  was  nothing  in  the  charter  of  the  Ten- 
nessee »fc  Coosa  Railroad  Company  authorizing  it  to  ttell  its  road,  but  by 
Acts  Alabama.  1890-91,  p.  5(58.  which  amended  $  1586  of  the  code,  the  au- 
thority was  granted.     See,  also,  Acts  Alabama,  1890-91,  p.  1086;  Acts  Ala- 
bama, 1886-87,  p.  63.     The  Nashville,  Chattanooga  &  St.  Louis  Railway 
had  the  right  to  purchase  under  Acts  Tennessee,  1871,  ch.  69;  Code  Ten- 
nessee (M.  &  V.),  I  1250;  Shannon's,  \  1509. 

What  franchises  passed  under  this  sale.— in  addition  to  the 

road,  property,  right  of  way,  etc.,  therein  conveyed,  the  deed 
specifically  transferred  all  rights,  privileges,  and  franchises  of 
the  company.  For  an  enumeration  of  the  same,  see  the  char- 
ter of  the  Tennessee  &  Coosa  Railroad  Company  farther  on  in 
this  chapter. 

Additional  franchises.— In  addition  to  the  franchises  that  passed  to 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  by  virtue  of  its  pur- 
chase of  the  Tennessee  &  Coosa  Railroad,  the  legislature  of  Alabama, 
by  Acts  1890-1,  p.  154,  approved  December  10,  1890,  conferred  upon  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  the  power  to  construct  and 
operate  its  road,  or  a  branch  thereof,  in  and  through  the  counties  of  Mad- 
ison, Marshall,  and  Etowah.  from  Huntsville  to  Attalla  or  Gadsden.  with 
all  the  rights,  privileges,  and  immunities  not  in  conflict  with  the  consti- 
tution of  the  State  of  Alabama,  and  subject  to  such  restrictions  as  are 
granted  to  and  imposed  upon  the  said  Nashville.  Chattanooga  &  St. 
Louis  Railway  by  the  act  or  acts  chartering  the  same.  For  franchises, 
etc.,  of  Nashville,  Chattanooga  &  St.  Louis  Railway  charter,  see  ch.  1, 
herein.  This  was  a  valuable  franchise,  and  will  now  doubtless  control 
in  all  cases. 

Distance  road  built  when  purchased.— Only  about  thirty 

miles  of  road,  commencing  at  Gadsden  and  extending  in  the 
direction  of  the  Tennessee  river,  had  been  built  when  purchased 
by  the  Nashville,  Chattanooga  &  St.  Louis  Railway.  Under 
and  by  virtue  of  the  franchises  acquired  in  the  sale,  however, 
and  by  Acts  Ala.,  1890-1,  p.  154,  above  referred  to,  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  has  since  constructed 
the  road  to  Huntsville. 

The  road  from  Huntsville  to  the  Tennessee  state  line  in  the  direction 
of  Elora,  was  constructed  under  the  charter  of  the  Huntsville  &  Elora 
Railroad  Company.  See  charter  of  that  road  on  p.  214,  herein,  which 
will  also  explain  how  the  road  from  that  point  to  Elora,  and  from  there 
through  Winchester  to  the  main  line,  was  built. 

Width  Of  right  Of  way. — It  is  one  of  the  peculiarities  of  this 
charter  that  no  power  was  granted  in  it  to  condemn  a  right  of 
way.  The  company  had  to  rely  solely  upon  its  purchasing 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         289 

power,  save  where  the  landowner  was  an  infant,  nonresident, 
or  iton  compos  mentis.  In  the  latter  cases  a  jury  was  allowed 
to  assess  the  damages.  Moreover,  there  is  no  clause  in  the 
charter  or  amendments  thereto  providing  for  a  width  of  right 
of  way  in  the  event  no  contract  was  entered  into  with  the  origi- 
nal landowner,  or  in  the  event  no  assessment  of  damages  was 
had,  nor  does  the  deed  to  the  road  provide  for  any  specified 
width.  The  deed  transfers  the  "right  of  way"  but  does  not 
designate  what  its  width  is.  Under  the  circumstances  the  width 

O 

along  the  line  actually  constructed  when  the  purchase  was  made 
at  each  point  will  depend  upon  the  number  of  feet  acquired  by 
the  Tennessee  &  Coosa  Railroad  Company,  and  to  determine 
which  reference  must  be  had  in  each  instance  to  the  records  on 
file  in  the  respective  counties  through  which  the  road  runs.  It 
appears,  however,  from  the  case  of  East  Alabama  Railroad 
Company  v.  Tennessee  <&  Coosa  Railroad  Company,  decided  in 
78  Ala.,  274,  that  the  width  of  right  of  way  along  that  part 
actually  constructed  when  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  purchased  the  road,  franchises,  etc.,  was  one 
hundred  feet.  See,  also,  75  Ala.,  516;  73  Ala.,  426;  68  Ala., 
383;  64  Ala.,  108. 

As  to  that  part  of  the  road  built  by  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  from  Huntsville  to  the  old  termi- 
nus of  the  Tennessee  &  Coosa  Railroad,  however,  the  width  of 
the  right  of  way  will  be  controlled  by  the  provisions  of  sections 
24  and  25  of  the  charter  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  as  by  Acts  Ala.,  1890-91,  p.  154,  above  re- 
ferred to,  all  the  rights,  privileges,  franchises,  etc.,  of  that 
charter  were  extended  over  the  line  of  this  road.  This  being: 

O 

so,  the  width  of  right  of  way  over  this  part  will  be  one  hundred 
feet  on  each  side  of  the  center  of  the  road,  where  the  owner 
faih  to  apply  in  time  for  as8es»iuent  of  value,  in  the  absence  of 
any  contract  to  the  contrary  with  the  landowner.  See  charter 
of  Nashville,  Chattanooga  &  St.  Louis  Railway  in  chapter  1, 
herein. 

For  right  to  take  more  than  one  hundred  feet  on  each  side,  when 
necessary  for  railroad  purposes,  see  Eminent  Domain,  Right  of  Hruj/, 
herein.  Refer  to  index. 

19 


290          ORIGINAL  CHARTER  dADSDEN  BRANCH 

ORIGINAL  CHARTER  OF  TENNESSEE   &  COOSA 
RAILROAD  COMPANY. 

[Acts  Ala.,  1844-5,  No.  220,  p.  170.] 

Preamble. — WHEREAS,  A  connection  by  railroad  of  the  nav- 
iorable  waters  of  the  Tennessee  with  those  of  the  Coosa  river 

O 

is  a  project  greatly  desired  by  the  citizens  of  a  large  portion  of 
the  State  of  Alabama;  and, 

WHEREAS,  It  would  develop  its  resources,  bind  together  sec- 
tions now  remote,  and  tend  generally  to  the  advancement  and 
the  prosperity  of  the  state;  therefore, 

SECTION  i.  Commissioners,  books  opened,  subscriptions.— 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
State  of  Alabama,  in  General  Assembly  convened,  That  B.  M. 
Lowe,  George  Cox,  George  Steele,  William  Brandon,  George 
P.  Burn,  William  J.  Mastin,  William  Echols,  John  Reede, 
Rodah  Horton,  John  W.  Otcy,  William  McDonald,  George 
Russell,  Fleming  Jordan,  William  Ront,  and  John  Robinson, 
of  Madison  county;  Charles  Roach,  Moses  Jones,  William  M. 
King,  and  John  Hudson,  of  Jackson  county;  Lew  Wyth,  Sim- 
son  Nichols,  Albert  Henry,  and  Allen  Lovelace,  of  Marshall 
county;  Simpson  Newman,  and  Jacob  T.  Bradford;  of  DeKalb 
county;  and  George  Hughes,  of  Cherokee  county,  be,  and 
they  are  hereby,  appointed  commissioners,  any  thirteen  of 
whom  shall  be  competent  to  act,  and  do  all  business  necessary 
to  be  done,  by  virtue  of  this  act  of  incorporation;  and  they 
shall  open  books  of  subscription  for  the  capital  stock  of  the 
Tennessee  &  Coosa  Railroad  Company,  at  such  time  and  places, 
and  with  such  notice  as  they  may  think  proper;  Provided,  The 
same  be  not  less  than  thirty  da}'s. 

SEC.  2.  Capital  stock,  value  of  shares,  increase  of  capital. 

—And  be  it  furtlier  enacted,  That  the  capital  stock  of  said  rail- 
road company  may  be  five  hundred  thousand  dollars,  in  shares 
of  one  hundred  dollars  each,  with  the  privilege  of  increasing 
one-third,  should  said  increase  be  found  necessary  for  its  con- 
struction and  future  management. 

SEC.  3.  Termini,  route. — And  be  it  farther  enacted,  That  said 
railroad  shall  extend  from  some  point  at  or  near  Gunter's  land- 


NASHVILLE,    CHATTANOOGA    4    ST.    LOUIS    RAILWAY.         291 

ing,  upon  the  Tennessee  river,  to  the  most  eligible  point  on  the 
Coosa  river,  l>etween  the  base  of  the  Lookout  mountain  and  Ten 
Island  Shoals,  and  shall  be  located  with  a  view  to  the  extension 
at  some  future  day,  to  some  point  on  the  Alabama  river. 

Termini  changed;  may  extend  road  to  Tennessee  line,  and  to  Gads- 
den,  etc.  —  Hy  Acts  Ala.,  1872-3,  p.  422,  the  above  section  was  amended  so 
as  to  read  as  follows:  "Said  railroad  shall  extend  from  some  point  at  or 
near  Gunter's  landing,  on  the  Tennessee  river,  to  a  point  to  be  selected 
by  said  company,  or  their  successors,  on  the  boundary  line  between  the 
states  of  Tennessee  and  Alabama,  with  a  view  to  its  further  extension  in 
a  northern  or  northwestern  direction,  as  said  company  may  determine, 
and  from  said  point  at  or  near  Gunter's  landing,  on  said  Tennessee  river, 
to  some  point  at  or  near  the  towns  of  Attalla  or  Gadsden,  in  Etowah 
county,  thence  by  way  of  the  cities  of  Talladega  and  Wetumpka  to  the 
city  of  Montgomery,  on  the  Alabama  river;  Provided,  That  the  provisions 
of  this  act  shall  in  nowise  impair  or  affect  any  contract  or  agreement 
heretofore  made  by  the  said  Tennessee  &  Coosa  Railroad  Company  with 
the  East  Alabama  «fe  Cincinnati  Railroad  Company."  See  act  itself,  which 
contains  same  conditions,  in  next  chapter. 

SEC.  4.  Incorporation,  name,  general  powers.— And  be  it 

further  enacted,  That  as  soon  as  fifty  thousand  dollars  shall  have 
been  subscribed  to  the  capital  stock  of  said  company,  the  sub- 
scril>ers  of  said  stock,  their  successors  and  assignees,  shall  lie, 
and  they  are  hereby,  declared  to  be  incorporated  into  a  com- 
pany by  the  name  of  the  Tennessee  &  Coosa  Railroad  Company; 
and  by  that  name  shall  be  capable  in  law  of  purchasing,  hold- 
ing, leasing,  selling  and  conveying,  real,  personal,  and  mixed 
property,  so  far  as  shall  be  necessary  for  the  purposes  of  this 
incorporation;  and  by  said  incorporated  name  may  sue  and  be 
sued,  plead  and  be  impleaded,  answer  and  be  answered  unto  in 
any  court  of  law  or  equity  in  this  state  or  elsewhere;  and  to 
have  and  use  a  common  seal,  and  the  same  to  alter  or  amend  at 
pleasure;  to  pass  such  by-laws,  rules,  and  ordinances  for  the 
good  government  of  said  corporation  as  to  them  may  seem 
proper;  and  generally  to  do  all  things  to  carry  into  effect  fully 
and  completely  the  objects  of  this  act. 

SEC.  5.  Election  of  directors  and  president,  scale  of  voting, 

proxies. — And  be  it  further  enacted,  That  as  soon  as  fifty  thou- 
sand dollars  shall  have  been  subscribed,  the  commissioners, 
hereby  apjx)inted,  shall  call  a  general  meeting  of  the  subscribers 
at  such  time  and  place  as  they  may  appoint;  and,  at  such  meet- 
ing, the  said  subscribers,  or  a  majority  of  them  in  value,  shall 


292  ORIGINAL    CHARTER    GADSDEN    BRANCH 

elect  nine  directors,  by  ballot,  to  manage  the  affairs  of  said 
company;  and  the  commissioners,  as  aforesaid,  or  any  three  or 
more  of  them,  shall  be  judges  of  said  first  election  of  directors; 
and  the  directors  thus  chosen  shall  elect,  among  themselves,  the 
president  of  said  company,  and  allow  him  such  compensation  as 
they  may  think  proper;  and  on  all  occasions  wherein  a  vote  of 
stockholders  shall  be  necessary  to  be  taken,  each  stockholder 
shall  be  allowed  one  vote  for  every  share  owned  by  him  or  her; 
and  any  stockholder  may  depute  any  other  person  to  vote  and 
act  for  him  or  her  as  his  or  her  proxy. 

SEC.  6.  Annual  elections;  powers  of  and  removal  of  di- 
rectors I  Vacancies,  hOW  filled.—^  it  further  enacted,  That 
the  president  and  directors  of  said  company  shall  be  chosen 
annually  by  the  stockholders  of  said  company;  and  if  any  va- 
cancy shall  occur  by  death,  resignation,  or  otherwise,  of  any 
president  or  director  before  the  year  for  which  they  were 
elected  shall  have  expired,  such  vacancy  shall  be  filled  by  the 
president  and  directors,  or  a  majority  of  them;  and  that  the 
president  and  directors  shall  hold  their  office  until  their  suc- 
cessors are  chosen  and  qualified,  shall  have  power  to  call  meet- 
ings of  stockholders  at  any  time,  and  a  majority  of  the  stock- 
holders shall  have  power  to  remove  the  president  or  any  di- 
rector, and  to  fill  all  vacancies  occasioned  by  removal,  at 
pleasure. 

Time  of  holding1  election  of  directors  changed. — By  Acts  of  Ala., 
1866-7,  p.  163,  No.  183,  this  section  was  amended  so  as  to  change  the 
time  of  holding1  the  election  of  president  and  directors  from  the  twenty- 
second  of  November  to  the  first  Monday  in  January,  and,  in  addition, 
legalized  all  acts  done  by  directors  from  November  22,  1866,  to  the  first 
Monday  in  January,  1867. 

SEC.  7.  Powers  of  directors,  mortgages.—^  it  further 

enacted,  That  said  president  and  directors,  or  a  majority  of 
them,  may  appoint  all  such  officers,  engineers,  agents,  or  ser- 
vants, whatsoever,  as  they  may  deem  necessary  to  carry  on  the 
business  of  said  company,  and  may  dismiss  them  at  pleasure; 
a  majority  of  them  shall  determine  the  compensation  of  all 
officers,  engineers,  and  servants  of  said  company;  shall  have 
power  to  pass  all  by-laws  which  they  may  deem  necessary  and 
proper  for  exercising  all  the  powers  vested  in  this  company  for 


NASHVILLE,    CHATTANOOGA    <fe   ST.    LOUIS   RAILWAY.         298 

carrying  into  effect  the  objects  of  this  act;  Provided  only,  That 
such  by-laws  shall  not  be  contrary  to  the  laws  of  this  state  or 
of  the  United  States;  and  said  president  and  directors,  or  a 
majority  of  them,  are  empowered  to  borrow  money  to  carry 
into  effect  the  object  of  this  act,  to  issue  certificates  or  other 
evidences  of  such  loan,  and  to  pledge  the  projrarty  of  said  com- 
pany for  the  payment  of  same,  with  interest. 

By  Acts  Ala.,  1857-8,  No.  295.  p.  310,  the  president  and  directors  of 
this  company  were  required  to  make  a  report  on  the  fifteenth  day  of  De- 
cember, 1857.  and  every  six  months  thereafter,  to  the  governor  of  the 
state,  showing1  the  manner  in  which  it  had  used  the  money  received  un- 
der the  provisions  of  an  act  entitled  "An  act  to  appropriate  the  unap- 
propriated part  of  the  two  per  cent,  fund,  and  a  portion  of  the  three  per 
cent,  fund."  approved  February  4,  1850.  See  act  itself  for  character  of 
report,  which  act  is  set  out  in  next  chapter. 

SEC.  8.  Installments,  stock  may  be  sold  for.— Ami  be  it 

further  enacted,  That  the  said  president  and  directors  shall 
have  power  to  require  the  stockholders  of  said  company  to  pay 
such  installments  on  their  respective  shares  of  stock  in  said 
company,  and  at  such  times  as  they  may  think  best  for  the  in- 
terest of  said  company;  and,  upon  the  failure  or  refusal  of  any 
stockholder  to  pay  the  installment  required  on  his,  her,  or  their 
stock,  in  pursuance  of  any  call  made  by  said  president  and  di- 
rectors as  aforesaid,  said  president  and  directors  may,  upon 
giving  thirty  days'  notice,  proceed  to  sell,  at  public  sale,  the 
share  or  shares  of  said  stock  owned  by  such  stockholder,  or 
such  part  as  they  may  think  proper,  to  the  highest  bidder,  and 
if,  upon  the  sale  of  the  shares  of  said  stock  owned  by  said  de- 
faulting stockholder,  said  stock  should  be  sold  for  less  than 
the  amount  due  upon  installments  as  above  mentioned,  said 
stockholder  shall  be  liable  to  pay  to  the  said  company  the  defi- 
ciency, in  manner  and  form  hereafter  specified. 
See  notes  to  sec.  9  of  this  charter. 

SEC.  9.  Installments,  stockholders  may  be  sued  for,  how. 

— And  Iw  it  further  enacted,  That  upon  the  failure  or  refusal  of 
any  stockholder  to  pay  any  installment  called  for  or  demanded 
by  the  president  and  directors  of  said  company;  or  if,  upon  the 
sale  of  said  shares,  as  before  specified,  they  shall  IKJ  sold  for 
less  than  the  amount  due  upon  the  installments  as  above  men- 


294          ORIGINAL  CHARTER  GADSDEN  BRANCH 

tioned,  the  president  and  directors,  upon  giving  twenty  days' 
notice  to  said  defaulting  stockholder,  may  proceed  by  their 
attorney  to  move  the  circuit  court  of  the  county  in  which  said 
stockholder  may  reside  for  judgment  against  said  stockholder 
for  the  amount  called  for  by  the  president  and  directors  of  said 
company,  or,  as  the  case  may  be,  for  any  deficiency  that  may 
occur  in  the  sale  of  said  stock  as  above  specified;  and  said  court 
is  hereby  authorized  and  empowered  and  required  to  render 
judgment  against  said  defaulting  stockholder  at  the  same  term 
of  the  court  at  which  said  motion  is  made,  which  judgment,  so 
given,  shall  be  a  lien  on  the  real  and  personal  property  of  said 
stockholder,  and  execution  shall  issue,  as  upon  other  judg- 
ments, for  the  amount  of  said  judgment  and  cost,  and  all 
notices  hereby  required  to  be  given  to  any  defaulting  stock- 
holder shall  be  issued  by  and  in  the  name  of  the  secretary  to 
the  board  of  directors,  and  served  by  the  sheriff  of  the  county 
in  which  the  stockholder  may  reside,  and  shall  be  returned  to 
the  office  of  the  clerk  of  the  court  as  in  cases  of  common  writs, 
and  the  sheriff  shall  be  entitled  to  one  dollar  for  serving  said 
notice,  which,  with  all  costs  that  may  accrue  on  said  proceed- 
ings shall  be  paid  by  the  party  against  whom  judgment  may  be 
rendered. 

1.  Charter  amended. —By  Acts  Ala.,    1855-56,    No.   316,   p.   322,   the 
above  section  was  amended  so  as  to  allow  the  company  to  bring-  suit  for 
installments  due  upon  subscriptions  for  stock  before  any  justice  of  the 
peace,  when  amount  due  at  time  of  suit  is  less  than  fifty  dollars. 

2.  Same. — The  same  act  provided  that  in  such  suits  no  one  should  be 
excluded  from  being-  a  witness  by  reason  of  being-  a  stockholder.     See 
act  itself  in  next  chapter. 

SEC.  10.  Land  for  right  of  way,  how  acquired.— And  ~be  it 

further  enacted,  That  the  president  and  directors  of  said  com- 
pany are  hereby  authorized  to  contract  for  and  receive  convey- 
ances of  land,  stone,  timber,  and  wood,  which  may  be  neces- 
sary or  required  in  the  construction  of  said  railroad;  and  when 
the  owner  and  company  cannot  agree  upon  the  price,  or  when 
the  owner  is  an  infant,  nonresident,  or  non  compos  mentis,  then 
it  shall  be  lawful  for  the  president  and  directors  of  said  com- 
pany to  apply  to  the  sheriff  of  the  county  in  which  said  lands 
or  other  property  may  be  situated,  who  shall  summon  a  jury 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.         295 

of  seven  disinterested  freeholders,  a  majority  of  whom  shall  IKJ 
authorized  to  assess  the  damages,  and  return  their  award  or 
judgment  to  the  next  term  of  the  circuit  court  for  the  county 
in  which  said  land  or  other  property  may  be  situated,  which 
shall  be  entered  by  the  clerk  as  the  judgment  of  the  court;  and 
execution  may  issue  thereupon  for  the  amount  of  said  judgment 
and  costs;  Provided  always,  That  if  either  party  shall,  upon  the 
return  thereof,  be  dissatisfied,  they  may,  upon  tiling  bond,  with 
good  and  sufficient  security,  in  such  sum  as  the  court  may  order, 
be  allowed  an  appeal  to  the  next  term  of  the  circuit  court,  where 
said  case  shall  stand  for  trial  de  now,  pryided  thirty  days' 
notice  shall  have  been  given  to  the  opposite  party,  issued  by 
the  clerk  of  the  court,  and  served  by  the  sheriff  of  the  county. 

Land  for  right  of  way,  how  acquired. — It  will  be  noticed,  as  one  of 
the  peculiarities  of  this  charter,  that  no  power  was  granted  to  condemn 
a  right  of  waj*.  The  company  had  to  rely  solely  upon  its  intrc)utslny 
power,  save  when  the  landowner  was  an  infant,  nonresident,  or  Turn 
compos  mentis.  In  the  latter  mentioned  cases  a  jury  was  allowed  to 
assess  the  damages.  There  is  no  clause  in  the  charter  or  amendments 
providing  for  a  wblth  of  right  of  way  in  the  event  no  contract  was  en- 
tered into  with  the  original  landowner,  or  in  the  event  no  assessment  of 
damages  was  had. 

By  Acts  Ala..  1890-91,  p.  154,  approved  December  10,  1890.  however, 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  was  granted  the  power 
to  construct  and  operate  its  road,  or  any  branch  thereof,  in  and  through 
the  counties  of  Madison,  Marshall,  and  Etowah,  from  Huntsville  to 
Attalla  or  Uadsden,  with  all  the  rights,  privileges,  and  immunities  not 
in  conflict  with  the  constitution  of  Alabama,  as  were  granted  to  it  in  the 
act  or  acts  chartering  the  same.  Sections  24  and  25  of  the  charter  of 
the  Nashville.  Chattanooga  &  St.  Louis  Railway  provide  for  a  method 
of  condemnation.  See  ch.  1,  herein.  This  would  hold  good  over  that 
part  of  the  road  from  Huntsville  to  the  terminus  of  the  old  Tennessee  & 
Coosa  Railroad,  which  latter  line  [from  Huntsville  to  said  terminus]  was 
built  by  the  Nashville,  Chattanooga  &  St.  Louis  Railway  after  the  above 
Acts  of  1890-91,  p.  154,  had  been  passed,  and  would  also  possibly  hold 
good  over  the  entire  line  to  (Jadsden. 

Width  of  right  of  way.— See  75  Ala.,  516;  73  /?>.,  426;  88  lb.,  383;  64 
Ib.,  108.  See,  also,  first  part  of  this  chapter. 

SEC.  11.  Oath  Of  jury. — And  be  it  fnrtfter  enacted,  That 
the  jurors  trying  such  case  shall  take  the  following  oath,  which 
oath  the  sheriff  is  hereby  authorized  to  administer:  "You,  and 
each  of  you,  do  swear  (or  affirm,  as  the  case  may  be\  that  you 
will  well  and  truly  try  the  case  now  pending  and  submitted  to 
your  decision,  between  A  B,  complainants,  and  the  president 
and  directors  of  the  Tennessee  &  Coosa  Railroad  Company, 


296  ORIGINAL    CHARTER    GADSDEN    BRANCH 

defendants;  and  that  you  will  take  into  consideration  the  ad- 
vantages and  value  which  the  construction  of  the  railroad  may 
give  to  lands  or  other  property,  as  well  as  the  injury  said 
lands  or  other  property  may  sustain  by  its  construction  through, 
or  near  which  it  may  be  constructed:  So  help  you  God." 

SEC.  12.  Title  to  land  acquired,  work  not  to  be  delayed.— 

And  be  it  further  enacted,  That  the  said  lands  or  other  prop- 
erty, when  so  condemned  and  estimated  as  aforesaid,  shall 
inure  to,  and  become  the  property  of  said  company  forever, 
upon  the  payment,  by  said  company,  of  the  amount  assessed 
by  said  jury  to  th^party  claiming  damages  on  account  of  the 
construction  of  said  road  through  said  land,  or  for  such  other 
property;  And  provided  further,  That  said  work  shall  in  no- 
wise be  delayed  on  account  of  proceedings  had  as  aforesaid. 

SEC.  13.  Injury  tO  road,  penalty. — And  be  it  further  enacted, 
That  in  case  any  person  shall  willfully  injure  or  obstruct,  in 
any  degree,  the  said  road  or  roads,  he  shall  forfeit  and  pay  to 
the  president  and  directors  of  said  company  three  times  the 
amount  of  all  damages  they  may  sustain  in  consequence  thereof; 
to  be  sued  for  and  recovered  in  the  same  manner  as  provided 
by  law  for  individuals  in  like  cases.  And  on  complaint  made 
to  any  magistrate  within  whose  jurisdiction  such  offense  shall 
be  committed,  it  shall  be  the  duty  of  such  magistrate  to  bind 
the  person  or  persons  so  offending,  with  sufficient  security,  for 
his  or  their  good  behavior  for  a  period  of  not  less  than  one 
year;  and  such  offender  shall  also  be  subjected  to  indictment, 
and  shall  be  sentenced,  at  the  discretion  of  the  court,  to  be 
imprisoned  not  less  than  three  nor  more  than  six  months. 

SEC.  14.  Public  roadS  not  tO  be  Obstructed.— An  d  be  it  fur- 
ther enacted,  That  in  the  construction  of  said  railroad  the  pres- 
ident and  directors  of  said  company  shall  not,  in  any  way  or 
manner,  obstruct  any  public  road  now  established;  but  shall 
provide  convenient  passages  to  travel  over  said  road. 

SEC.  15.  Subscriptions  may  be  paid  in  what.— And  be  it  fur- 
ther enacted,  That  payments  of  the  subscription  to  the  stock  in 
said  railroad  may  be  made  in  the  materials,  labor,  provisions, 
and  all  and  everything  necessary  for  the  construction  of  said 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         297 

road,  which  the  board  of  directors,  at  their  discretion,  may 
deem  it  expedient  to  accept. 

SEC.  16.  Tolls;  net  profits  not  to  exceed  what.— Ami  be  it 

further  enacted,  That  after  the  completion  of  said  road,  or  any 
part  thereof,  the  said  president  and  directors  may  lay  and  col- 
lect tolls  from  all  persons,  property,  merchandise,  and  other 
commodity  transported  thereon;  Provided,  The  net  profits  of 
said  road  shall  never  exceed  twenty-five  per  cent,  per  annum. 

By  Acts  Ala.,  1869-70,  p.  290,  No.  245.  sec.  2,  approved  March  2,  1870, 
the  company  was  required  to  transport  passengers  at  a  rate  not  to  exceed 
four  cents  per  mile,  and  local  freight  at  a  rate  not  to  exceed  25  per  cent, 
higher  than  is  charged  for  through  freight.  See  act  itself  in  next  chapter. 

SEC.  17.  Other  roads  may  CrOSS  this.— And  le  it  farther 
enacted,  That  the  general  assembly  reserve  the  right  and  power 
to  authorize  the  construction  of  any  railroad  to  cross  the  one 
authorized  by  this  act,  at  any  point  the  general  assembly  may 
think  proper. 

By  Acts  Ala..  1857-8,  No.  152.  p.  162,  sec.  2,  the  Winchester  &  Alabama 
Railroad  was  allowed  to  connect  with  this  railroad  at  or  near  some  con- 
venient point  near  the  Davidson  Hollow,  but  this  was  never  done,  as  the 
said  road  was  never  extended  into  Alabama. 

SEC.  is.  Banking  and  issuing  circulating  paper  prohibited. 

— And  be  it  further  enacted,  That  nothing  in  this  act  shall  l>e  so 
construed  as  to  confer  upon  said  company  any  right  to  exercise 
the  power  of  a  banking  company  or  to  issue  any  description  of 
paper  or  evidences  of  debt  intended  as  circulation.  (Acts  Ala., 
1844-5,  No.  220,  p.  170;  approved  January  16,  1844.) 


298     DEED  AND  ACTS  RELATING  TO  GADSDEN  BRANCH 


CHAPTER  XXVII. 

DEED  TO  AND  ACTS  RELATING  TO  TENNESSEE  &  COOSA 
RAILROAD. 

DEED. 

This  indenture  witnesseth  that,  whereas,  on  the  thirty-first 
of  March,  1891,  the  following  contract  of  conveyance  between 
the  Tennessee  &  Coosa  Railroad,  party  of  the  first  part,  and  the 
Nashville,  Chattanooga  &  St.  Louis  Railway,  party  of  the 
second  part,  was  made,  to  wit: 

This  indenture,  made  and  entered  into  on  this,  the  thirty- 
first  day  of  March,  1891,  by  and  between  the  Tennessee  & 
Coosa  Railroad  Compan}7,  a  corporation  organized  and  existing 
under  the  laws  of  the  State  of  Alabama,  part}T  of  the  first  part, 
and  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  a  corpo- 
ration organized  and  existing  under  the  laws  of  the  State  of 
Tennessee,  party  of  the  second  party,  witnesseth  that, 

WHEREAS,  Said  party  of  the  first  part  is  justly  indebted  to 
the  party  of  the  second  part  in  a  large  sum  of  money,  exceed- 
ing the  sum  of  four  hundred  thousand  dollars,  for  money  by 
said  party  of  the  second  part  paid,  laid  out,  and  expended  by 
said  party  of  the  second  part  in  satisfaction  of  debts  and  liabili- 
ties of  said  party  of  the  first  part,  and  in  the  construction  and 
equipment  of  the  line  of  road  of  the  said  party  of  the  first  part 
from  the  city  of  Gadsden,  in  the  county  of  Etowah,  to  a  point 
on  the  located  line  of  said  road  near  the  city  of  Guntersville, 
in  the  county  of  Marshall,  in  the  State  of  Alabama;  and, 

WHEREAS,  Said  party  of  the  second  part  is  the  owner  of  one 
hundred  and  five  (105)  of  the  first  and  only  mortgage  bonds  of 
this  company,  each  for  the  payment  of  one  thousand  dollars, 
which  bonds,  with  the  semiannual  interest  thereon  for  the  years 
1888,  1889,  and  1890  are  unpaid;  and, 


NASHVILLE,    CHATTANOOGA    4    8T.    LOUIS    RAILWAY.         299 

WHEREAS,  At  a  meeting  of  the  board  of  directors  of  the  said 
party  of  the  first  part,  convened  in  the  city  of  Huntsv'ille,  in 
the  State  of  Alabama,  on  the  thirty-first  day  of  March,  1891, 
of  which  meeting  each  director  had  due  and  legal  notice,  a  pre- 
amble and  resolutions,  in  the  words  following,  were  adopted  by 
said  board  of  directors: 

"  WHEREAS,  This  company  is  justly  indebted  to  the  Nashville, 
Chattanooga  and  St.  Louis  Railway  in  a  sum  exceeding  four 
hundred  thousand  dollars,  which  sum  has  been  expended  in  the 
construction  and  equipment  of  the  line  of  road  of  this  company 
from  the  city  of  Gadsden,  in  the  county  of  Etowah,  to  a  point 
near  the  city  of  Guntersville,  in  the  county  of  Marshall,  in  the 
State  of  Alabama,  and  in  the  payment  of  debts  and  liabilities 
of  this  company;  and, 

"WHEREAS,  Said  Nashville,  Chattanooga  &  St.  Louis  Kail- 
way  was  induced  to  aid  this  company  by  the  expenditure  and  ad- 
vance of  said  sum  of  money  with  a  view  and  for  the  purpose  of 
connecting  a  line  of  road  of  this  company  to  and  with  the  line 
of  road  of  said  Nashville,  Chattanooga  &  St.  Louis  Railway 
north  of  the  Tennessee  river,  at  some  point  on  such  line  either 
in  the  county  of  Madison  or  in  the  county  of  Jackson  in  this 
state,  so  that  a  continuous  line  of  railroad  would  be  constructed 
and  operated  to  and  from  said  city  of  Gadsden  to  such  point  on 
the  lines  of  railroad  of  said  Nashville,  Chattanooga  &  St.  Louis 
Railway  north  of  the  Tennessee  river  as  may  be  selected,  and 
thence  to  Chattanooga  and  Nashville  in  the  State  of  Tennessee; 
and, 

"  WHEREAS,  Said  Nashville,  Chattanooga  &  St.  Louis  Railway 
is  the  holder  and  owner  of  one  hundred  and  five  (105)  of  the 
first  and  only  mortgage  bonds  of  this  company,  each  for  the 
payment  of  one  thousand  dollars,  and  which,  with  the  semian- 
nual interest  thereon  for  the  years  1888,  1889,  and  1890,  are 
unpaid;  and, 

"  WHEREAS,  This  company  has  not  the  ability  to  pay  the  said 
debt  and  to  continue  the  construction  of  its  said  line  of  road 
from  the  city  of  Gadsden  to  a  point  at  or  near  Gunter's  land- 
ing on  the  Tennessee  river,  and  thence  across  said  river,  con- 


300     DEED  AND  ACTS  RELATING  TO  GADSDEN  BRANCH 

necting  with  other  lines  of  railroad,  without  the  borrowing  of 
money  and  contracting  a  large  indebtedness,  which  is  not  be- 
lieved to  be  to  the  interest  of  the  stockholders;  therefore, 

"  1.  Be  it  rexolved,  That  it  is  expedient  to  the  interest  of 
this  company  and  to  the  best  interest  of  the  stockholders,  to 
make  sale  to  said  Nashville,  Chattanooga  &  St.  Louis  Railway 
of  all  the  property,  rights  of  property,  real  and  personal,  and 
of  all  the  rights,  privileges,  and  franchises  of  this  company,  in 
payment  of  the  said  indebtedness  of  this  company,  the  said 
Nashville,  Chattanooga  &  St.  Louis  Railway  stipulating  and 
covenanting  to  assume  and  discharge  any  and  all  other. debts 
and  liabilities  of  this  company,  and  to  pay  each  shareholder  of 
the  company  the  par  value  of  his  stock;  and  further  stipulating 
to  continue  and  to  complete  the  construction  of  the  line  of  road 
of  this  company,  now  in  the  course  of  construction,  to  a  point 
at  or  near  Gunter's  landing  on  the  Tennessee  river,  and  thence 
across  said  river  to  a  point  on  its  line  of  railroad  aforesaid; 

"2.  Be  it  farther  resolved,  That  the  foregoing  preamble  and 
resolution  shall  be  submitted  to  a  meeting  of  the  stockholders 
of  this  company,  called  for  the  purpose  of  considering  the  same, 
of  which  meeting  due  and  legal  notice  shall  be  given  said  stock- 
holders; and,  if  the  said  preamble  and  resolution  be  approved 
by  a  majority  of  said  stockholders,  and  the  stockholders  of  said 
Nashville,  Chattanooga  &  St.  Louis  Railway,  and  the  board  of 
directors  thereof  shall  assent  to  make  the  purchase  on.  the  terms 
and  conditions  expressed  in  said  resolution,  the  board  of  di- 
rectors of  this  company  are  authorized  and  empowered  to  cause 
all  necessary  and  proper  conveyances  to  said  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  to  be  made  and  executed  by  this 
company;  "  and, 

WHEREAS,  Subsequently  said  preamble  and  resolutions  were 
submitted  to  a  meeting  of  the  stockholders  of  said  party  of  the 
first  part,  convened  in  the  city  of  Huntsville  aforesaid,  on  the 
thirty-first  day  of  March,  1891,  for  the  purpose  of  considering 
the  same,  of  which  meeting,  and  the  purpose  for  which  it  was 
called,  due  and  legal  notice  was  given  to  each  and  every  stock- 
holder, saving  and  excepting  W.  C.  Waddle,  A.  M.  Davenport, 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         301 

and  H.  W.  Pickens,  who  own,  in  the  aggregate,  twelve  shares, 
and  whose  residence  were,  and  are,  unknown;  and, 

WHEREAS,  After  considering  said  resolutions,  said  stock- 
holders, at  said  meeting,  adopted  a  resolution  approving  the 
said  preamble  and  resolutions,  and  instructing  the  board  of 
directors  of  the  party  of  the  first  part  to  make  the  said  sale  and 
all  the  necessary  and  proper  conveyances  to  •carry  the  same 
into  effect;  and, 

WHEREAS,  The  said  stockholders  and  the  board  of  directors 
of  the  said  party  of  the  second  party  have  considered  the  said 
preamble  and  resolutions,  and  have  approved  the  same,  and 
assented  to  the  said  sale  on  the  terms  and  conditions  in  said 
preamble  and  resolutions  expressed: 

Now  this  indenture  further  witnesseth:  That  for  and  in  con- 
sideration of  the  stipulations  and  covenants  of  said  party  of  the 
second  part  hereinafter  expressed,  and  for  and  in  consideration 
of  the  satisfaction  of  the  debts  and  liabilities  of  said  part}'  of 
the  first  part  to  said  party  of  the  second  part  hereinbefore 
mentioned,  said  party  of  the  first  part  hath  given,  granted, 
bargained  and  sold,  and  conveyed,  and  by  these  presents  doth 
give,  grant,  bargain,  sell,  and  convey  unto  said  party  of  the 
second  part,  its  successors  and  assigns,  forever,  all  the  line  of 
said  road  of  said  party  of  the  first  part  now  constructed,  ex- 
tending from  said  city  of  Gadsden,  in  all  about  thirty  miles  in 
length;  and  also  the  right  or  rights  of  way  therefor,  roadbed, 
superstructure,  and  all  lands  and  depot  grounds,  station  houses, 
depots,  tools,  materials,  equipments,  and  rolling  stock,  and  all 
other  property,  real  or  personal,  appertaining  to  said  road  and 
the  use  thereof,  now  owned  or  jx>ssessed  by  said  party  of  the 
first  part,  and  also  including  any  and  all  other  property,  real 
or  j)ersonal,  and  all  rights  of  property  now  had  or  Franchlses 
possessed  by  said  party  of  the  first  part,  and  all  pass< 
the  rights,  privileges,  and  franchises  which  are  held  and  pos- 
sessed by  said  party  of  the  first  part. 

To  have  and  to  hold  the  above  mentioned  and  hereby  granted 
property  and  rights  of  property,  rights,  privileges,  and  fran- 
chises, unto  the  said  party  of  the  second  part,  its  successors  and 


302     DEED  AND  ACTS  RELATING  TO  GADSDEN  BRANCH 

assigns,  forever;  and  said  party  of  the  second  part,  for  itself, 
its  successors  and  assigns,  doth  hereby  stipulate  and  covenant 
to  and  with  said  party  of  the  h'rst  part  for  and  in  consideration 
of  the  premises,  that  it  will  pay  and  satisfy  all  debts  and  lia- 
bilities now  existing  against  said  party  of  the  first  part;  and, 
further,  that  it,  the  said  party  of  the  second  part,  its  successors 
and  assigns,  wiH  pay  to  each  stockholder  of  the  said  party  of 
the  first  part  the  par  value  of  his  stock  on  the  surrender  and 
cancellation  of  his  certificate  or  certificates  of  stock. 

And,  further,  that  it,  said  party  of  the  second  part,  its  suc- 
cessors and  assigns,  will  continue  and  complete  the  construc- 
tion of  the  line  of  railroad  hereby  granted  and  conveyed  to  a 
point  at  or  near  Gunter's  landing  on  the  Tennessee  river,  and 
thence  across  said  river  to  some  point  on  its  said  line  of  rail- 
road north  of  said  river,  so  as  to  form  the  continuous  line  of 
road  in  the  said  preamble  and  resolution  contemplated  and  in- 
tended. 

In  witness  whereof,  the  parties  hereto  have  caused  these  pres- 
ents to  be  signed  by  their  respective  presidents  and  their  corpo- 
rate seals  to  be  hereto  affixed  and  attested  by  their  respective 
secretaries  the  day  and  year  above  written. 

THE  TENNESSEE  &  COOSA  RAILROAD  COMPANY, 
By  J.  W.  THOMAS,  President. 

The  Tennessee  &  Coosa  Railroad  Company  has  no  seal. 

Attest:  J.  H.  AMBROSE,  Secretary. 

NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 
[SEAL.]  By  J.  W.  THOMAS,  President. 

Attest:  J.  H.  AMBROSE,  Secretary. 

AND,  WHEREAS,  Upon  submission  of  this  contract  of  con- 
veyance to  the  directors  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  at  a  meeting  held  at  the  office  of  said  railway 
on  the  fourth  day  of  April,  1891,  the  following  resolution  was 
adopted : 

"\VHEREAS,  Upon  submission  to  the  board  of  directors  of 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  of  the  deed 
and  contract  of  conveyance  of  the  Tennessee  &  Coosa  Railroad 


NASHVILLE,    CHATTANOOGA    A   ST.    LOUIS    RAILWAY.         303 

Company  of  its  properties,  franchises,  etc.,  it  was  discovered 
that  by  oversight  the  following  clauses  were  inserted  in  the 
conveyance:  'The  said  Nashville,  Chattanooga  &  St.  Louis 
Railway  stipulating  and  covenanting  to  assume  and  discharge 
any  and  all  other  debts  and  liabilities  of  this  company,  and  to 
pay  each  shareholder  of  the  company  the  par  value  of  his  stock, 
and  for  and  in  consideration  of  the  satisfaction  of  the  debts 
and  liabilities  of  said  party  of  the  first  part  to  said  party  of 
the  second  part,  hereinbefore  mentioned;  and  said  party  of 
the  second  part,  for  itself,  its  successors  and  assigns,  doth 
hereby  stipulate  and  covenant  to  and  with  said  party  of  the 
first  part,  for  and  in  consideration  of  the  premises,  that  it  will 
pay  and  satisfy  all  the  debts  and  liabilities  now  existing  against 
said  party  of  the  first  part;'  and, 

"  WHEREAS,  This  formed  no  part  of  the  consideration 
passing  between  this  company  and  the  Tennessee  &  Coosa  Rail- 
road Company, 

"  Be  it  resolved  by  the  Board  of  Directors  of  the  Na*hville, 
Chattanooga  &  St.  Louis  Railway,  That  said  deed  and  contract 
of  conveyance  be,  and  it  is  hereby,  approved  and  accepted, 
with  the  exception  of  said  above  mentioned  clauses,  and  the 
president  of  this  company  is  directed  to  execute  with  the  Ten- 
nessee &  Coosa  Railroad  Company  an  agreement  by  which  said 
deed  and  contract  of  conveyance  shall  be  so  amended  as  to 
eliminate  said  clauses;''  and, 

WHEREAS,  At  a  meeting  of  the  board  of  directors  of  the 
Tennessee  &  Coosa  Railroad  Company,  held  at  Huntsville, 
Ala.,  on  the  sixth  day  of  April,  1891,  the  said  contract  of 
conveyance  having  been  submitted  to  said  board,  the  following 
resolutions  were  adopted: 

"  WHEREAS,  Tpon  submission  to  the  board  of  directors  of 
the  Tennessee  &  Coosa  Railroad  Company  of  the  deed  and 
contract  of  conveyance  of  the  Tennessee  &  Coosa  Railroad 
Company  of  its  projHjrties,  franchises,  etc.,  to  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  it  was  discovered  that  by 
oversight  the  following  clauses  were  inserted  in  the  conveyance: 
kThe  said  Nashville,  Chattanooga  &  St.  Louis  Railway  stipulat- 


304     DEED  AND  ACTS  RELATING  TO  GADSDEN  BRANCH 

ing  and  covenanting  to  assume  and  discharge  any  and  all  other 
debts  and  liabilities  of  this  company,  and  to  pay  each  share- 
holder of  the  company  the  par  value  of  his  stock,  and  for  and 
in  consideration  of  the  satisfaction  of  the  debts  and  liabilities  of 
said  party  of  the  first  part  to  said  party  of  the  second  part  here- 
inbefore mentioned;  and  said  party  of  the  second  part,  for 
itself,  its  successors  and  assigns,  doth  hereby  stipulate  and  cove- 
nant to  and  with  said  party  of  the  first  part,  for  and  in  consid- 
eration of  the  premises,  that  it  will  pay  and  satisfy  all  the  debts 
and  liabilities  now  existing  against  said  party  of  the  first  part; ? 
and, 

' '  WHEREAS,  This  formed  no  part  of  the  consideration  passing 
between  this  company  and  the  Nashville,  Chattanooga  &  St. 
Louis  Railway: 

"Be  it  resolved  by  the  Board  of  Directors  of  the  Tennessee  & 
Coosa  Railroad  Company,  That  said  deed  and  contract  of  con- 
veyance be,  and  it  is  hereby,  approved  and  accepted,  with  the 
exception  of  said  above  mentioned  clauses,  and  the  president  of 
this  company  is  directed  to  execute  with  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  an  agreement,  by  which  said  deed 
and  contract  of  conveyance  shall  be  so  amended  as  to  eliminate 
said  clauses." 

Now,  THEREFORE,  In  accordance  with  the  resolution  of  said 
boards,  and  with  the  original  understanding,  contract,  and  agree- 
ment between  the  two  companies,  it  is  agreed  by  the  parties 
hereto  that  said  deed  and  contract  of  conveyance  or  indenture, 
executed  on  the  thirty-first  day  of  March,  1891,  be,  and  the 
same  is  hereby,  amended  so  as  to  read  as  follows: 

This  indenture,  made  and  entered  into  this,  the  thirty-first 
day  of  March,  eighteen  hundred  and  ninety-one  (1891),  by  and 
between  the  Tennessee  &  Coosa  Railroad  Company,  a  corpora- 
tion organized  and  existing  under  the  laws  of  the  State  of  Ala- 
bama, party  of  the  first  part,  and  the  Nashville,  Chattanooga 
&  St.  Louis  Railway,  a  corporation  organized  and  existing  un- 
der the  laws  of  the  State  of  Tennessee,  party  of  the  second  part, 
witnesseth;  that — 

WHEREAS,  Said  party  of  the  first  part  is  justly  indebted  to 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         305 

said  party  of  the  second  part  in  a  large  sum  of  money,  exceed- 
ing the  sum  of  four  hundred  thousand  dollars,  for  money  by 
said  party  of  the  second  part  paid,  laid  out,  and  ex{>ended  by 
said  party  of  the  second  part  in  satisfaction  of  debts  and  liabil- 
ities of  the  said  party  of  the  h'rst  part,  and  in  the  construction 
and  equipment  of  the  line  of  railroad  of  said  party  of  the  first 
parUfrom  the  city  of  Gadsden,  in  the  county  of  Etowah,  to  a 
point  on  the  located  line  of  said  railroad  near  the  city  of  Gun- 
tersville,  in  the  county  of  Marshall,  in  the  State  of  Alabama; 
and, 

WHEREAS,  Said  party  of  the  second  part  is  the  owner  and 
holder  of  one  hundred  and  five  of  the  first  and  only  mortgage 
bonds  of  this  company,  each  for  the  payment  of  one  thousand 
dollars,  which  bonds,  with  the  semiannual  interest  thereon,  for 
the  years  1888,  1889,  and  1890,  are  unpaid;  and, 

WHEREAS,  At  a  meeting  of  the  board  of  directors  of  the  said 
party  of  the  first  part,  convened  in  the  city  of  Huntsville,  in 
the  State  of  Alabama,  on  the  thirty-first  day  of  March,  1891, 
of  which  meeting  each  director  had  due  and  legal  notice,  a  pre- 
amble and  resolution,  in  words  following,  were  adopted  by  said 
board  of  directors; 

WHEREAS,  This  company  is  justly  indebted  to  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  in  a  sum  exceeding  four  hun- 
dred thousand  dollars,  which  sum  has  been  expended  in  the 
construction  and  equipment  of  the  line  of  road  of  this  company, 
from  the  city  of  Gadsden,  in  the  county  of  Ktowah,  to  a  point 
near  the  city  of  Guntersville,  in  the  county  of  Marshall,  in  the 
State  of  Alabama,  and  in  the  payment  of  debts  and  liabilities 
of  this  company;  and, 

WHEREAS,  Said  Nashville,  Chattanooga  &  St.  Louis  Railway 
was  induced  to  aid  this  company,  by  the  expenditure  and  ad- 
vance of  said  sum  of  money,  with  the  view  and  for  the  purpose 
of  connecting  the  line  of  railroad  of  this  company  to  and  with 
the  line  of  railroad  of  said  Nashville,  Chattanooga  &  St.  Louis 
Railway,  north  of  the  Tennessee  river,  at  some  point  on  such 
line,  either  in  the  county  of  Madison  or  in  the  county  of  Jack- 
son, in  this  state,  so  that  a  continuous  line  of  railroad  will  be 
20 


306     DEED  AND  ACTS  RELATING  TO  GADSDEN  BRANCH 

constructed  and  operated  to  and  from  said  city  of  Gadsden,  to 
such  point  of  the  line  of  railroad  of  said  Nashville,  Chattanooga 
&  St.  Louis  Railway,  north  of  the  Tennessee  river,  as  may  be 
selected,  and  thence  to  Chattanooga  and  Nashville,  in  the  state 
of  Tennessee;  and, 

WHEREAS,  Said  Nashville,  Chattanooga  &  St.  Louis  Railway 
is  the  holder  and  owner  of  one  hundred  and  five  of  the  first  and 
only  mortgage  bonds  of  this  company,  each  for  the  payment  of 
one  thousand  dollars,  and  which,  with  the  semiannual  interest 
thereon  for  the  years  1888,  1889,  and  1890,  are  unpaid;  and, 

WHEREAS,  This  company  has  not  the  ability  to  pay  the  said 
debts  and  to  continue  the  construction  of  its  said  line  of  road 
from  the  city  of  Gadsden  to  a  point  at  or  near  Gunter's  land- 
ing, on  the  Tennessee  river,  and  thence  across  said  river,  con- 
necting with  other  lines  of  railroad,  without  the  borrowing  of 
money  and  contracting  a  large  indebtedness,  which  is  not  be- 
lieved to  be  to  the  interest  of  the  stockholders  of  this  com- 
pany; therefore, 

1.  Be  it  resolved,  That  it  is  expedient  for  this  company,  and 
to  the  best  interest  of  the  stockholders,  to  make  sale  to  said 
Nashville,  Chattanooga  &  St.  Louis  Railway  of  all  the  prop- 
erty,  rights  of  property,   real  and   personal,   and   of  all   the 
rights,  privileges,  and  franchises  of  this  company  in  payment 
of  the  said  indebtedness  of  this  company,  the  said  Nashville, 
Chattanooga  &  St.  Louis  Railway  stipulating  and  covenanting 
to  complete  the  construction  of  the  line  of  road  of  the  com- 
pany now  in  the  course  of  construction  to  a  point  at  or  near 
Guntersville    landing,    on    the   Tennessee    river,    and    thence 
across  said  river  to  a  point  on  its  lines  of  railroad  aforesaid. 

2.  Be  it  farther  resolved,  That  the  foregoing  preamble  and 
resolution  shall  be  submitted  to  a  meeting  of  the  stockholders 
of  this  company  called  for  the  purpose  of  considering  the  same, 
of  which  meeting  due  and  legal  notice  shall  be  given  said  stock- 
holders.     And  if  said  preamble  and  resolution  be  approved  by 
a  majority  of  said  stockholders  and  the  stockholders  of  said 
Nashville,  Chattanooga  &  St.  Louis  Railway  and  if  the  board 
of  directors  thereof  shall  assent  to  make  the  said  purchase  on 


NASHVILLE,    CHATTANOOGA    &   ST.    LOUIS    RAILWAY.         307 

the  terms  and  conditions  expressed  in  said  resolutions,  the 
board  of  directors  of  this  company  are  authorized  and  em- 
powered to  cause  all  necessary  and  proper  conveyances  to  said 
Nashville,  Chattanooga  &  St.  Louis  Railway  to  be  made  and 
executed  by  this  company.  And, 

WHEREAS,  As  subsequently  said  preamble  and  resolutions 
were  submitted  to  a  meeting  of  the  stockholders  of  said  party 
of  the  first  part,  convened  in  the  city  of  Hunts ville  aforesaid,  on 
the  thirty-first  day  of  March,  1891,  for  the  purpose  for  which 
it  was  called.  Due  and  legal  notice  was  given  to  each  and  every 
stockholder,  saving  and  excepting  W.  C.  Waddle,  A.  M.  Dav- 
enport, and  H.  W.  Pickens,  who  own,  in  the  aggregate,  twelve 
shares,  and  whose  residences  were  and  are  unknown;  and, 

WHEREAS,  After  considering  said  resolution,  the  said  stock- 
holders, at  said  meeting,  adopted  a  resolution  approving  the 
said  preamble  and  resolutions,  and  instructing  the  board  of 
directors  of  the  party  of  the  first  part  to  make  the  said  sale, 
and  all  the  necessary  and  proper  conveyances  to  carry  the  same 
into  effect;  and, 

WHEREAS,  The  stockholders  and  the  board  of  directors  of 
the  said  party  of  the  second  part  have  considered  the  said  pre- 
amble and  resolutions,  and  have  approved  the  same,  and  assented 
to  the  sale  on  the  terms  and  conditions  in  said  preamble  and 
resolutions  expressed: 

Now,  THIS  INDENTURE  FURTHER  WITNESSETH,  That  for  and 
in  consideration  of  the  stipulations  and  covenants  of  the  said 
party  of  the  second  part  hereinafter  expressed,  said  party  of 
the  first  part  hath  given,  granted,  bargained,  sold,  and  conveyed, 
and  by  these  presents  doth  give,  grant,  bargain,  sell,  and  convey, 
unto  said  party  of  the  second  part,  its  successors  and  assigns, 
forever,  all  the  line  of  railroad  of  said  party  of  the  first  part 
now  constructed,  extending  from  said  city-of  Gadsden,  in  all 
about  thirty  miles  in  length;  and  also  the  right  or  rights  of 
way  therefor,  roadbed,  superstructure,  and  all  lands,  depot 
grounds,  station  houses,  depots,  tools,  materials,  equipments, 
and  rolling  stock,  and  all  other  property,  real  or  personal,  ap- 
pertaining to  said  road,  and  to  the  use  thereof,  now  owned  or 


308     DEED  AND  ACTS  RELATING  TO  GADSDEN  BRANCH 

possessed  by  said  party  of  the  first  part;  and  also  including 
Franchises  an^  anc^  a^  otner  property,  real  or  personal,  and 
pass.  au  rights  of  property  now  had  or  possessed  by  said 

party  of  the  first  part,  and  all  the  rights,  privileges,  and 
franchises  which  are  held  and  possessed  by  said  party  of  the 
first  part. 

To  have  and  to  hold  the  above  mentioned  and  hereby  granted 
property  and  rights  of  property,  rights,  privileges,  and  fran- 
chises, unto  the  said  party  of  the  second  part,  its  successors  and 
assigns,  forever; 

AND,  FURTHER,  That  it,  said  party  of  the  second  part,  its 
successors  and  assigns,  will  pay  to  each  stockholder  of  the  said 
party  of  the  first  part  the  par  value  of  his  stock,  on  the  sur- 
render and  cancellation  of  his  certificate  or  certificates  of  stock. 

AND,  FURTHER,  That  it,  said  party  of  the  second  part,  its  suc- 
cessors and  assigns,  will  continue  and  complete  the  construc- 
tion of  the  line  of  railroad  hereby  granted  and  conveyed,  to  a 
point  at  or  near  Gunter's  landing,  on  the  Tennessee  river,  and 
thence  across  said  river  to  some  point  on  its  line  of  railroad 
north  of  said  river,  so  as  to  form  a  continuous  line  of  road  in 
the  said  preamble  and  resolutions  contemplated  and  intended. 

IN  WITNESS  WHEREOF,  That  parties  hereto  above  caused 
these  presents  to  be  signed  by  their  respective  presidents,  and 
their  corporate  seals  to  be  hereto  affixed,  and  attested  by  their 
respective  secretaries,  this,  the  sixth  day  of  April,  1891. 

THE  TENNESSEE  &  COOSA  RAILROAD  Co., 

By  J.  W.  THOMAS,  President. 

Attest:  J.  H.  AMBROSE,  Secretary. 

The  Tennessee  &  Coosa  Railroad  Compamr  has  no  seal. 

NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 

[SEAL.]  By  J.  W.  THOMAS,  President. 

J.  H.  AMBROSE-,  Secretary. 

STATE  OF  TENNESSEE,  | 

Davidson  County.  f  On  this,  the  sixth  day  of  April,  A.D. 
1891,  before  me  J.  T.  Spalding,  a  notary  public,  duly  author- 
ized to  act  in  and  for  the  above  named  county,  come  the  Ten- 
nessee &  Coosa  Railroad  Company,  by  its  president,  J.  W. 


NASHVILLE,    CHATTANOOGA    A    8T.    LOUIS    RAILWAY.         309 

Thomas,  and  its  secretary,  J.  H.  Ambrose;  and  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  by  its  president,  J.  W. 
Thomas,  and  its  secretary,  J.  H.  Ambrose,  to  me  |>ersonally 
known  to  be  the  identical  jxjrsons  whose  names  are  affixed  to 
the  foregoing  instrument,  and  acknowledged  the  execution  of 
said  instrument  to  be  their  voluntary  act  and  deed  as  such  pres- 
ident and  secretary,  and  for  and  as  the  voluntary  act  and  deed 
of  the  said  Tennessee  &  Coosa  Railroad  Company  and  the  said 
Nashville,  Chattanooga  <£  St.  Louis  Railway;  and  being  by  me 
duly  sworn,  they  say  that  they  reside  in  Nashville,  Tenn.,  and 
that  J.  W.  Thomas  is  president  and  J.  II.  Ambrose  is  secretary 
of  the  Tennessee  &  Coosa  Railroad  Company,  also,  that  J.  W. 
Thomas  is  president  and  J.  II.  Ambrose  is  secretary  of  the 
Nashville,  Chattanooga  &  St.  I^ouis  Railway,  and  that  they  ex- 
ecuted the  said  instrument  by  order  of  the  boards  of  directors 
of  said  companies. 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  and  of- 
ficial seal,  at  Nashville,  Tenn.,  the  day  and  year  first  above 
written.  [SEAL.]  J.  T.  SPALDIXG,  Xotary  Public. 

The  above  deed  was  registered  in  the  office  of  judge  of  probate  court, 
of  Marshall  county,  in  book  S,  p.  277;  in  Etowah  county,  in  book  31,  p.  3GG. 

ACTS    ALABAMA    RELATING    TO     TENNESSEE 
&    COOSA    RAILROAD    COMPANY. 

1.  Termini  of  Tennessee  &  Coosa  Railroad  changed. 

SECTION  1.  Be  it  enacted  by  the  General  Axx<  inbly  of  Ala- 
bainsi,  That  the  third  section  of  an  act  entitled  "An  act  to  in- 
corporate the  Tennessee  &  Coosa  Railroad  Company,"  ap- 
proved January  1(>,  1844,  which  is  in  the  following  words,  to 
wit:  "Sec.  3.  And  be  it  further  enacted,  That  said  railroad 
shall  extend  from  some  point  at  or  near  (iimter's  landing,  on 
the  Tennessee  river,  to  the  most  eligible  point  on  the  Coosa 
river,  between  the  base  of  Lookout  Mountain  and  the  Ten 
Island  Shoals,  and  shall  be  located  with  a  view  to  the  extension 
at  some  future  day  to  some  point  on  the  Alabama  river,"  be, 
and  the  same  is  hereby,  amended  so  as  to  read  as  follows: 
"That  said  railroad  shall  extend  from  some  point  at  or  near 


310     DEED  AND  ACTS  RELATING  TO  GADSDEN  BRANCH 

Gunter's  landing,  on  the  Tennessee  river,  to  a  point  to  be  se- 
lected by  said  company  or  their  successors,  on  the  boundary 
line  between  the  states  of  Tennessee  and  Alabama,  with  a  view 
to  its  further  extension  in  a  northern  or  northwestern  direction, 
as  said  company  may  determine,  and  from  said  point  at  or  near 
Gunter's  landing,  on  said  Tennessee  river,  to  some  point  at  or 
near  the  towns  of  Attalla  or  Gadsden,  in  Etowah  county,  thence, 
by  way  of  the  cities  of  Talladega  and  Wetumpka,  to  the  city  of 
Montgomery,  on  the  Alabama  river;  Provided,  That  the  pro- 
visions of  this  act  shall  in  nowise  impair  or  affect  any  contract 
or  agreement  heretofore  made  by  the  said  Tennessee  &  Coosa 
Railroad  Company  with  the  East  Alabama  &  Cincinnati  Rail- 
road Company. 

SEC.  2.  Be  it  further  enacted,  That  said  sec.  3  of  said  act, 
NO  diversion  as  amen(led,  shall  not  be  so  construed  as  to  divert, 
of  rights,  etc.  m  anv  wav  wnatever?  anv  rights,  powers,  priv- 
ileges, or  purchases  now  possessed  or  owned  under  and  by 
virtue  of  any  law  or  laws  of  this  state. 

SEC.  3.  Be  it  further  enacted,  That  the  true  intent  and 
meaning  of  this  act  is  to  authorize  and  empower  said  company 
True  intents  ^°  construct  a  railway  from  Gunter's  landing,  on 
and  meaning.  ^ae  Tennessee  river,  to  the  boundary  line  of  the 
states  of  Tennessee  and  Alabama,  with  a  view  to  its  further 
extension  in  a  northern  or  northwestern  direction,  as  may  be 
determined  by  said  company,  and  from  said  Gunter's  landing, 
on  said  river,  to  some  point  at  or  near  the  towns  of  Attalla  or 
Gadsden,  in  Etowah  county,  thence  by  way  of  the  cities  of 
Talladega  and  Wetumpka  to  the  city  of  Montgomery,  on  the 
Alabama  river;  Provided,  That  said  Tennessee  & 
Coosa  Railroad  Company  be,  and  are  hereby,  re- 
quired to  give  the  same  accommodations  to  all  persons  paying 
the  same  fare,  without  regard  to  race,  color,  or  previous  con- 
dition of  servitude,  and  that  said  Tennessee  &  Coosa  Railroad 
Company  shall  not  refuse  to  sell  first-class  tickets  to  any  person 
or  persons  applying  for  the  same  on  account  of  race  or  color. 
(Acts  Ala.,  1872-3,  p.  422;  approved  April  22,  1873.) 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         311 

2.  Tennessee  &  Coosa  Railroad  Company  released  from  indebt- 
edness to  State  of  Alabama. 

WHEREAS,  The  legislature  of  Alabama  has  heretofore  ap- 
propriated, loaned,  and  advanced  to  the  Tennessee  &  Coosa 
Railroad  Company,  portions  of  the  two  and  three 
per  cent,  fund,  which  have  been  applied  to  the 
construction  of  said  road,  by  means  of  which,  and  of  moneys 
derived  from  subscriptions  of  stock,  the  said  road  was  graded, 
in  1861;  and,  whereas,  by  reason  of  the  war  the  work  on  said 
road  was  suspended,  the  company  impoverished,  and  the  sureties 
on  the  second  bonds  given  to  the  state  are  unable  to  meet  their 
liabilities;  and,  whereas,  assurances  are  given  that  said  railroad, 
which  is  deemed  of  great  importance  to  the  people  of  Alabama, 
can  be  finished  in  a  reasonable  time,  if  the  state  of  Alabama  re- 
mits its  claims  upon  said  company;  therefore, 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  Alabama, 
That  the  Tennessee  &  Coosa  Railroad  Company  be,  and  they 
are  hereby,  released  and  discharged  from  all  obliga-  Re)ease  of 
tions,   bonds,  claims,  and  demands  due  from  said  clalms 
company  to  the  state  of  Alabama,  by  reason  of  any  appropria- 
tions to  said  road  of  the  two  and  three  per  cent,  funds,  or  any 
part  thereof,  and  the  said  portions  of  said  funds  heretofore 
appropriated  to  said   road  are  hereby  donated  to  the  same; 

Provided,  The  said  railroad  shall  l>e  completed  in 

Proviso 
two  years  from  the  date  of  the  approval  of  this  act; 

Provided,  That  nothing  in  this  act  contained  shall  be  so  con- 
strued or  held  as  to  make  the  state  of  Alabama  responsible  or 
bound  to  any  other  company  for  the  portions  of  the  said  two 
and  three  per  cent,  funds  hereby  released  and  granted  to  said 
Tennessee  &  Coosa  Railroad  Company;  and  the  state  hereby 
quitclaims  and  releases  to  said  Tennessee  &  Coosa  sute  Jt 
Railroad  Company  all  its  right  and  title  to  said  two  clalms- 
and  three  per  cent,  funds  heretofore  appropriated  to  said  rail- 
road company;  Provided  further,  That  the  said  company  shall 
receive  no  further  aid  from  the  state  of  Alabama,  by  the  indorse- 
ment of  its  bonds  or  otherwise. 

SEC.  2.   Be  it  further  enacted,  That  as  a  condition  on  which 


312     DEED  AND  ACTS  RELATING  TO  GADSDEN  BRANCH 

the  said  railroad  is  released  from  the  payment  of  the  two  and 
three  per  cent,  fund  to  the  state,  the  said  railroad  company 
Conditions  sna^  transport  passengers  at  a  rate  not  to  exceed 
four  cents  per  mile,  and  all  local  freights  at  a  rate 
not  to  exceed  twenty-five  per  cent,  higher  than  is  charged  for 
through  freight.  (Acts  Alabama,  1869-70,  p.  290,  No.  245; 
approved  March  2,  1870.) 

3.  Charter  amended,  directors  to  make  semiannual  report  to 
governor. 

SECTION  1.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  State  of  Alabama,  in  General  Assembly  con- 
vened, That  the  president  and  directors  of  the  Tennessee  & 
Coosa  Railroad  Company  be,  and  they  are  hereby,  required  to 
make  a  report  on  the  fifteenth  clay  of  December, 
1857,  and  every  six  months  thereafter,  to  the  gov- 
ernor of  the  State  of  Alabama,  which  said  report  shall  show 
the  manner  in  which  they  have  used  the  money  received  by 
them  under  the  provisions  of  an  act  entitled  "An  act  to  appro- 
priate the  unappropriated  part  of  the  two  per  cent,  fund,  and 
a  portion  of  the  three  per  cent,  fund,"  approved  February  4, 
1850,  by  the  provisions  of  which  they  were  authorized  to  re- 
ceive, upon  conditions,  certain  amounts  of  the  two  and  three 
per  cent,  funds;  said  report  shall  exhibit  the  amount  of  said 
two  and  three  per  cent,  funds  now  on  hand,  what  amount  is 
loaned  out,  and  in  what  way  and  upon  what  security,  and  when 
the  same  is  payable,  and  also  what  amount  of  said  funds  have 
been  paid  out  and  finally  disposed  of  by  them,  and  for  what 
purposes. 

SEC.  2.   Be  it  further  enacted,    That  the  said  president  of 
the  said  railroad  company  shall,  before  submitting  the  said  re- 
port provided  for  in  the  preceding  section  of  this 
act,  make  affidavit  of  the  correctness  thereof  be- 
fore some  officer  of  this  state  authorized  by  law  to  administer 
oaths. 

SEC.  3.  Be  it  further  enacted,  That  if  the  said  president 
President  an(^  (lirectors  of  said  Tennessee  &  Coosa  Railroad 
and  directors.  Company,  and  their  successors  in  office,  shall  fail 


NASHVILLE,    CHATTANOOGA    &    ST.     LOUIS    RAILWAY.          313 

or  neglect  to  comply  with  the  provisions  of  this  act,  then  so 
many  of  them  as  assent  to  or  sanction  such  failure  or  neglect 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  upon  indictment  shall  be  punished  by  fine  and  impris- 
onment, one  or  both,  at  the  discretion  of  the  jury 
trying  the  same;  and  shall,  moreover,  be  person- 
ally liable  in  their  private  property  to  the  state  for  the  amount 
of  said  two  and  three  per  cent,  funds  which  may  be  by  them 
misapplied  or  squandered. 

SEC.  4.    Be  it  further  enacted,  That  upon  the  passage  and 

approval  of  this  act  it  shall   be  the  dutv  of  the 

Clerk, 
clerk  of  the  house  of  representatives  forthwith  to 

send  a  certified  copy  of  it  to  the  said  president  and  directors 
of  the  said  Tennessee  &  Coosa  Railroad  Company.  (Acts 
Ala.,  1857-8,  p.  310,  No.  295;  approved  November  30,  1857.) 

4.  Charter  amended ;  suits  for  subscription ;  witnesses. 

SECTION  1.   Be  It  enacted  by  the.   Senate  and  Houxe  of  Rep- 
resentatives  of   the    State  of  Alabama    hi    General  Assembly 
convened,  That  an  act   entitled    "An    act   to    incorporate  the 
Tennessee  &  Coosa   Railroad   Company,"   approved  January 
16,  1854:,  be,  and  the  same  is  hereby,  so  amended 
that  the  said  company  shall  be,  and  hereby  are,  au- 
thorized to  bring  suits  for  installments  due  upon  subscriptions 
for  stock  in  said  company,   before  any  justice  of  the  peace, 
when  the  amount  due  at  the  time  the  suit  is  brought  is  less  than 
fifty  dollars. 

SEC.  2.  Be  It  further  enacted,  That  in  all  suits  brought  by 
said  company  against  delinquent  stockholders,  no  one  shall  be 
excluded  from  being  a  witness  on  the  trial  of  the  same  by 
reason  of  being  a  stockholder  in  said  company.  (Acts  Ala., 
1855-56,  p.  322,  No.  316;  approved  January  16,  1856.) 

5.  Charter  amended;  time  of  holding  elections  changed. 

SECTION  1.  Be  it  enacted  by  the  Senate  and  Hoime  of  Rep- 
resentatives of  the  State  of  Alatxima  In  General  Assembly 
convened,  That  the  time  of  holding  the  annual  election  of  presi- 
dent and  board  of  directors  of  the  Tennessee  &  Coosa  Railroad 


314     DEED  AND  ACTS  RELATING  TO  GADSDEN  BRANCH 

Company  be  changed  from  the  twenty-second  of  November  to 
the  first  Monday  in  January,  and  that  all  acts  done  by  the 
present  board  from  the  twenty-second  of  November,  1866,  to 
the  first  Monday  in  January,  18o7,  be,  and  the  same  are  hereby, 
legalized  and  made  firm  and  binding,  any  existing  law  to  the 
contrary  notwithstanding.  (Acts  Ala.,  1866-67,  p.  163;  ap- 
proved December  7,  1866,  No.  183.) 

6.  Act  construing  Acts  Alabama,  approved  February  19, 1889, 
releasing  Tennessee  &  Coosa  Railroad  Company  from 
indebtedness  to  state. 

Be  it  enacted  by  the  General  Assembly  of  Alabama,  That, 
WHEREAS,  When  the  act  entitled  "An  act  to  amend  an  act  enti- 
tled an  act  to  release  the  Tennessee  &  Coosa  Railroad  Company 
from  its  indebtedness  to  the  State  of  Alabama  ' '  was  passed  and 
approved,  the  extension  of  the  line  of  said  railroad  north  of 
the  Tennessee  river  had  been  located  to  run  to  the  city  of 
Huntsville,  in  Madison  county,  in  this  state,  and  the  construc- 
tion of  said  road,  as  thus  located,  had  been  let  and  contracted 
to  be  built,  and  some  six  miles  thereof  graded  from  said  city 
of  Huntsville;  and, 

WHEREAS,  One  of  the  chief  inducements  to  the  release  of 
the  indebtedness  due  the  State  of  Alabama  from  said  railroad 
company  provided  by  said  act  was  said  extension  to  said  city  of 
Huntsville,  thereby  giving  railroad  communication  with  said 
city  to  the  citizens  of  other  portions  of  the  state;  and, 

WHEREAS,  It  appears  that  it  is  contemplated  by  said  railroad 
company,  and  those  in  charge  thereof,  to  abandon  said  line  and 
located  route  to  said  city  of  Huntsville,  and  substitute  therefor 
another  and  different  route;  now,  therefore, 

It  is  hereby  declared  to  be  the  true  intent  and  meaning  of 
said  act  of  February  19,  1889,  and  said  act  is  amended  to  read 
as  follows: 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  Ala- 
bama, That  the  Tennessee  &  Coosa  Railroad  Company  be,  and 
they  are  hereby,  discharged  from  all  obligations,  bonds,  claims, 
and  demands  due  from  said  company  to  the  State  of  Alabama, 
by  reason  of  any  appropriation  to  said  road  of  the  two  and 


NASHVILLE,    CHATTANOOGA    A   ST.    LOUIS    RAILWAY.         315 

three  per  cent,  funds,  or  any  part  thereof,  and  the  said  {>or- 
tions  of  the  said  funds  heretofore  appropriated  to  said  road, 
are  hereby  donated  to  the  same;  Provided,  The  said  railroad, 
as  now  located  from  the  city  of  Gadsden,  on  the  B 

*  release  con- 

Coosa  river,  to  the  city  of  Guntersville,  on  the  dm°nal- 
Tennessee  river,  and  thence  to  the  city  of  Huntsville,  in  Mad- 
ison county,  in  this  state,  shall  be  completed  in  4ive  years  from 
the  date  of  approval  of  said  amendment,  February  19,  1881; 
Provided,  That  nothing  in  this  act  contained  shall  be  so  con- 
strued or  held  as  to  make  the  State  of  Alabama  responsible  or 
hound  to  any  other  company  for  the  jx)rtions  of  the  said  two 
and  three  per  cent,  funds  hereby  released  and  granted  to  said 
Tennessee  &  Coosa  Railroad  Company,  and  the  state  hereby 
quitclaims  and  releases  to  said  Tennessee  &  Coosa  Railroad 
Company  all  its  rights  and  title  to  said  two  and  three  per  cent, 
funds  heretofore  appropriated  to  said  railroad  company;  Pro- 
vided further*  That  the  said  company  shall  receive  no  further 
aid  from  the  State  of  Alabama  by  the  indorsement  of  its  bonds 
or  otherwise. 

SEC.  2.  Be  it  furtlwr  enacted,  That  all  laws  and  parts  of 
laws  in  conflict  with  this  act  be,  and  the  same  are  hereby,  re- 
pealed. (Acts  Ala.,  1890-91,  p.  399.) 

1.  The  above  act,  not  having  been  approved  or  returned  by  the  gov- 
ernor, became  a  law  under  sec.  13,  art  V.,  of  the  constitution. 

2.  The  above  act  is  doubtless  unconstitutional,  as  against  the  vested 
rights  of  the  company.     Again,  it  is  not  the  province  of  the  legislature 
to  expound  the  meaning  of   previously  existing  laws.     They  can  say 
what  the  law  xhull  be,  but  not  what  it  Is.     2  Hum.  (Tenn.),  304;  1  Hax. 
(Tenn.),  319. 

Nashville,  Chattanooga  &  St.  Louis  Railway  allowed  to  build 
road  or  branch  through  counties  of  Madison,  Marshall 
and  Etowah  to  Attalla  or  Gadsden,  Alabama,  with  rights, 
privileges,  etc.,  of  Tennessee  charter. 

SECTION  1.  Be  it  enacted  by  the  General  Asxembly  of  Alabama, 
That  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  a  corpo- 
ration chartered  under  the  laws  of  the  State  of  Tennessee,  l>e, 
and  the  same  is  hereby,  authorized  and  empowered  to  construct, 
operate,  and  maintain  its  road,  or  a  branch  thereof,  in  and 
through  the  counties  of  Madison,  Marshall,  and  Etowah,  in  the 


316     DEED  AND  ACTS  RELATING  TO  GADSDEN  BRANCH 

State  of  Alabama,  beginning  at  Huntsville,  in  Madison  county, 
and  extending  thence  through  the  counties  of  Madison,  Mar- 
shall, and  Etovvah,  to  Attalla  or  Gadsden,  in  said  Etowah 
county. 

SEC.  2.  Be  it  further  enacted,  That  the  said  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  shall  have  and  enjoy  all  the 
rights,  privileges,  and  immunities  not  in  conflict  with  the  con- 
stitution of  the  State  of  Alabama,  and  be  subject  to  such  re- 
strictions as  are  granted  to  and  imposed  upon  said  Nashville, 
Chattanooga  &  St.  Louis  Railway  by  the  act  or  acts  chartering 
the  same,  so  far  as  said  railway  lies  in  the  counties  of  Madison, 
Marshall,  and  Etowah,  or  may  hereafter  be  constructed  therein. 
(Acts  Ala.,  1890-91,  p.  154;  approved  December  10,  1890.) 

7.  State  aid  to  Tennessee  &  Coosa  Railroad  Company. 

The  following  acts  of  Alabama  relating  to  the  Tennessee  & 
Coosa  Railroad  will  so  seldom  be  required  that  it  is  deemed 
unnecessary  to  set  them  out  in  full,  but  simply  to  give  the  book 
and  page  where  they  can  be  found: 

1.  Acts  Alabama,  1844,  p.  39,  which  loaned  the  two  per  cent, 
fund  to  the  Tennessee  &  Coosa  Railroad  Company. 

2.  Acts  of  Alabama,   1853-54,  p.  280,  which  also  loans  a 
part  of  the  two  and  three  per  cent,  funds  to  the  Tennessee  & 
Coosa  Railroad  Company,  upon  certain  conditions  relating  to 
work  upon  and  completion  of  the  road.    (See,  also,  36  Ala.,  371.) 
This  act  was  amended  by  Acts  1855-56,  p.  240,  passed  Decem- 
ber 19,  1855,  so  as  to  amend  section  five  of  this  act.      (See  36 
Ala.,  371.) 

3.  Acts  Alabama,  passed  February  24,  1860,  the  fifth  section 
of  which  construes  the  first  section  of  the  act  ordering  the  loan 
to  the  Tennessee  &  Coosa  Railroad.      (See  36  Ala.,  371.) 

4.  Acts  of  Alabama,  1861,  p.  80  (extra  session),  which  post- 
pones the  loan  of  the  State  of  Alabama  to  the  Tennessee  & 
Coosa  Railroad. 

5.  Acts  of  Alabama,  1869-70,  p.  290,  No.  245,  which  releases 
Tennessee  &  Coosa  Railroad  Company  from  its  indebtedness  to 
the  state  of  Alabama.     This  act,  however,  is  set  out  above. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         317 

6.  Acts  of  Alabama,  1875-76,   p.   154,   which  made  it  the 
duty  of  the  governor  to  transmit  to  all  railroads  a  list  of  the 
lands  as  certified  to  the  state  by  the  commissioners  of  the  gen- 
eral land  office  and  approved  by  the  secretary  of  the  interior, 
and  to  indorse  his  approval  thereon,  and  this  to  oj>erate  as  a 
conveyance  on  the  part  of  the  state  of  all  its  title  to  said  lands. 

7.  Acts  of  Alabama,    1882-83,  p.   62,   relates  to  the  state 
lands  claimed  by  the  Tennessee  &  Coosa  Road. 

8.  Acts  of  Alabama,  1888-89,  p.  479,  which  amends  the  first 
section  of  the  Acts  of  1869-70,  p.  290,  so  as  to  make  the  release 
and  donation  of  the  loan  of  said  funds  dependent  upon  the  com- 
pletion "of  said  railroad  in  five  years  from  the  approval  of  the 
act." 

There  is  no  doubt,  however,  but  that  the  completion  of 
the  road  from  Guntersville  to  Gadsden  satisfies  the  conditions  of 
the  act  of  1889  above  referred  to,  and  discharges  the  road  from 
further  liability  for  the  funds  loaned  to  them. 


318         ABSTRACT    OF    TITLE    TO    WEST    NASHVILLE    BRANCH 


CHAPTER   XXVIII. 

THE  WEST  NASHVILLE  RAILWAY  COMPANY. 

(WEST  NASHVILLE  BRANCH.) 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— On  July  6,  1887,  the  Nashville  Land  Improvement 
Company,  in  pursuance  of  a  resolution  of  its  directors  and 
stockholders,  sold  the  West  Nashville  Railway,  its  rights,  fran- 
chises, etc.,  to  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way. The  Nashville  Land  Improvement  Company  had  previ- 
ously purchased  the  road,  franchise,  etc.,  from  the  West  Nash- 
ville Railway  Company,  which  latter  company  was  chartered 
under  the  general  acts  of  1875,  ch.  142,  to  construct  a  railroad 
from  a  point  on  the  Northwestern  division  of  the  said  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  about  two  and  three- 
fourths  miles  from  the  Church  street  depot,  to  a  point  on  the 
bluff  on  the  Cumberland  river  near  the  line  between  the  Mark 
S.  Cockrill  place  and  the  old  Clifton  town  site,  in  Davidson 
county,  Tennessee. 

The  consideration  paid  was  an  agreement  on  the  part  of  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  to  operate  the 
road  and  charge  thereon  for  freight  and  passengers  according 
to  a  scale  set  out  in  the  deed,  and,  in  addition,  to  run  a  certain 
number  of  trains  per  day.  For  a  more  perfect  enumeration  of 
the  considerations  passing,  see  deed  in  next  chapter. 

1.  The  agreement  as  to  the  number  of  trains  to  be  run  per  day  has 
been  considerably  modified  by  subsequent  agreement. 

2.  Legality  of  purchase. — The  purchase  of  this  road,  franchises,  etc., 
was  legal  under  the  Acts  of  1871,  ch.  69,  which  superseded  the  Acts  of 
1871,  ch.  22. 

3.  Deed,  where  registered. — The  deed  to  the  road  is  registered  in  the 
register's  office  of  Davidson  county,  in  book  109,  p.  47. 

What  franchises,  etc.,  passed  under  this  sale.— in  addition 

to  the  railroad  and  properties  therein  conveyed,  the  deed  spe- 


NASHVILLE,    CHATTANOOGA    A    8T.     LOUIS    RAILWAY.          319 

cifically  provided  for  the  transfer  of  all  the  rights,  privileges, 
and  franchises  of  the  West  Nashville  Railway  Company.  For 
enumeration  of  said  franchises,  etc.,  see  charter  further  on  in 
this  chapter. 

Width  Of  right  Of  way. — The  width  of  the  right  of  way  over 
that  part  of  the  road  purchased  from  the  Nashville  Land  Im- 
provement Company  is  twenty  feet  on  either  side  of  the  center 
of  the  road,  save  through  the  Elliston  tract,  which  will  also 
fully  appear  from  the  deed  to  said  road  in  the  next  chapter. 

Since  the  purchase  of  the  road,  however,  from  the  Nashville 
Land  Improvement  Company,  the  same  has  been  extended  some 
distance.  Over  the  line  of  this  extension,  if  no  contrary  agree- 
ment with  the  landowner  was  entered  into,  the  Nashville,  Chat- 
tanooga <fe  St.  Louis  Railway  will  doubtless  be  entitled,  as  the 
legal  purchaser  of  said  road,  franchises,  etc.,  to  one  hundred 
feet  on  either  side  of  the  center  of  the  road,  as  the  entry  and 
construction  of  the  road  would  be  regarded  as  an  appropriation 
of  the  full  amount  of  land  authorized  by  the  charter,  which 
would  be  two  hundred  feet,  as  above  explained.  3  Lea  <Tenn.), 
478.  See,  also,  sec.  33  of  charter. 

1.  For  the  right  of  successive  appropriation  and  its  application  to 
charters  granted  under  the  general  acts  of  1875,  ch.   142,  see  Eminent 
Domain,  Hight  of  H'fiy,  herein.     Refer  to  index. 

2.  By  Acts  1849-50.  ch.  26<i,  sec.  3,  it  is  provided  that  all  branches  of 
the  Nashville  &  Chattanooga  Railroad  Company  as  may  be  made  shall 
have  the  rights  and  privileges,  and  shall  be  placed  in  all  respects  on  the 
same  footing,  as  the  Nashville  «fe  Chattanooga  Railroad  Company. 

ORIGINAL  CHARTER  OF  THE  WEST  NASH- 
VILLE RAILWAY  COMPANY. 

(Chartered   under  (teneral   Acts  1875,  ch.    142.) 

SECTION  i.  Incorporation,  name,  route,  general  powers.— 

Be  it  kiwirn,  That  Norman  M.  Pierce,  Yolney  James,  L.  H. 
Davis,  H.  W.  Buttortf,  and  H.  M.  Pierce  are  hereby  consti- 
tuted a  body  politic  and  corporate  by  the  name  and  style  of 
"  West  Nashville  Railway  Company,"  for  the  purpose  of  con- 
structing a  railway  from  a  point  in  the  county  of  Davidson, 
State  of  Tennessee,  on  the  Northwestern  Division  of  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  about  two  and  three- 


320  ORIGINAL    CHARTER    WEST    NASHVILLE    BRANCH 

quarter  miles  from  the  Church  street  depot  of  said  railway,  in 
the  city  of  Nashville,  in  Davidson  county,  Tennessee,  to  a  point 
on  the  bluff  of  the  Cumberland  river  near  the  line  between  the 
Mark  S.  Cockrill  place  and  the  old  Clifton  town  site  in  David- 
son county,  Tennessee. 

1.  Charter  amended,  may  change  termini. — By  Acts  1887,  ch.  39, 
sees.  1  and  2,  all  railroad  companies  chartered  under  the  general  laws  of 
this  state,  may,  by  resolution  of  board  of  directors,  chang-e  either  ter- 
minus before  the  final  location  of  the  road.     See  act  for  method. 

2.  By-laws  for  arbitration  sustained.     7  Pick.  (Tenn.),  64. 

3.  Branch  roads. — By  Acts  1889.  ch.  158,  all  railroad  companies  char- 
tered under  the  general  laws  of  the  state  are  allowed  to  build  branch 
roads.     Sec  act  itself  for  method. 

SEC.  2.  General  powers,  continued.— The  general  powers  of 
said  corporation  are,  to  sue  and  be  sued  by  the  corporate  name, 
to  have  and  use  a  common  seal,  which  it  may  alter  at  pleasure; 
if  no  common  seal,  then  the  signature  of  the  name  of  the  cor- 
poration by  any  duly  authorized  officer  shall  be  legal  and  bind- 
ing; to  purchase  and  hold,  or  receive  by  gift,  in  addition  to 
the  personal  property  owned  by  said  corporation,  any  real 
estate  necessary  for  the  transaction  of  the  corporate  business, 
and  also  to  purchase  or  accept  any  real  estate  in  payment,  or 
part  payment,  of  any  debt  due  to  the  corporation,  and  sell 
realty  for  corporation  purposes;  to  establish  by-laws  and  make 
all  rules  and  regulations  not  inconsistent  with  the  laws  and  con- 
stitution deemed  expedient  for  the  management  of  corporate 
affairs;  to  appoint  such  subordinate  officers  and  agents,  in  addi- 
tion to  .the  president  and  secretary  or  treasurer,  as  the  business 
of  the  corporation  may  require;  to  designate  the  name  of  the 
office  and  fix  the  compensation  of  the  officer. 

SEC.  3.  Special  provisions. — The  following  provisions  and 
restrictions  are  coupled  with  said  grant  of  powers:  A  failure 
to  elect  officers  at  the  proper  time  does  not  dissolve  the  corpo- 
ration, but  those  in  office  hold  until  the  election  or  appointment 
and  qualification  of  their  successors.*  The  term  of  all  officers 
may  be  fixed  by  the  by-laws  of  the  corporation;  the  same  not, 
however,  to  exceed  two  years.  The  corporation  may,  by  by- 
laws, make  regulations  concerning  the  subscription  for,  or 
transfer  of  stock;  fix  upon  the  amount  of  capital  to  be  invested 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         321 

in  the  enterprise,  the  division  of  the  same  into  shares,  the 
time  required  for  payment  thereof  by  the  8ubscril>ers  for 
stock,  the  amount  to  be  called  for  at  any  one  time;  and  in  case  of 
failure  of  any  stockholder  to  pay  the  amount  thus  subscribed 
by  him  ut  the  time  and  in  the  amounts  thus  called,  a  right  of 
action  shall  exist  in  the  corporation  to  sue  said  defaulting  stock- 
holder for  the  same. 

*See  3  Hum.,  531;  12  Lea,  252;  4  Cold.,  101. 

SEC.  4.  Directors,  quorum  Of,  bOOkS.— The  board  of  direct- 
ors, which  may  consist  of  five  or  more  members,  at  the  option 
of  the  corporation,  to  be  elected  either  in  person  or  by  proxy, 
by  a  majority  of  the  votes  cast,  each  share  representing  one 
vote,  shall  keep  a  full  and  true  record  of  all  their  proceedings, 
and  an  annual  statement  of  receipts  and  disbursements  shall 
be  copied  on  the  minutes,  subject  at  all  times  to  the  inspection 
of  any  stockholder.  The  books  of  the  corporation  shall  show 
the  original  or  subsequent  stockholders,  their  respective  inter- 
ests, the  amount  which  has  been  paid  on  the  shares  subscribed, 
the  transfer  of  stock,  by  and  to  whom  made;  also  other  trans- 
actions in  which  it  is  presumed  a  stockholder  or  creditor  may 
have  an  interest. 

SEC.  5.  Unpaid  StOCk. — The  amount  of  any  unpaid  stock 
due  from  a  subscriber  to  the  corporation  shall  be  a  fund  for 
the  payment  of  any  debts  due  from  the  corporation,  nor  shall 
the  transfer  of  stock  by  any  subscriber  relieve  him  from  pay- 
ment, unless  his  transferee  has  paid  up  all  or  any  of  the  balance 
due  on  said  original  subscription. 

See  10  Pickle,  154,  608. 

SEC.  6.  Express  and  implied  powers.— By  no  implication  or 

construction  shall  the  corporation  be  deemed  to  possess  any 
powers  except  those  hereby  expressly  given  or  necessarily  im- 
plied from  the  nature  of  the  business  for  which  the  charter  is 
granted,  and  by  no  inference  whatever  shall  said  corporation 
possess  the  power  to  discount  notes  or  bills,  deal  in  gold  or 
silver  coin,  issue  any  evidence  of  debts  as  currency,  buy  and 
sell  any  agricultural  products,  deal  in  mt'ivlmidisi'.  or  engage 
in  any  business  outside  the  purpose  of  the  charter. 
21 


32'2  ORIGINAL    CHARTER    WEST    NASHVILLE    BRANCH 

SEC.  7.  Charter  may  be  repealed  or  amended.— The  right  is 

reserved  to  repeal,  annul,  or  modify  this  charter.  If  it  is  re- 
pealed, or  if  the  amendments  proposed,  being  not  merely  auxil- 
iary.but  fundamental,  are  rejected  by  a  vote  representing  more 
than  half  of  the  stock,  the  corporation  shall  continue  to  exist 
for  the  purpose  of  winding  up  its  affairs,  but  not  to  enter  upon 
any  new  business.  If  the  amendments  or  modifications,  being 
fundamental,  are  accepted  by  the  corporation  as  aforesaid,  in 
a  general  meeting  to  be  called  for  that  purpose,  any  minor, 
married  woman,  or  other  person  under  disability,  or  any  stock- 
holder not  agreeing  to  the  acceptance  of  the  modification,  shall 
cease  to  be  a  stockholder,  and  the  corporation  shall  be  liable  to 
pay  said  withdrawing  stockholders  the  par  value  of  their  stock, 
if  it  is  worth  so  much;  if  not,  then  so  much  as  may  be  its  real 
value  in  the  market  on  the  day  of  the  withdrawal  of  said  stock- 
holders as  aforesaid;  Provided,  That  the  claims  of  all  creditors 
are  to  be  paid  in  preference  to  said  withdrawing  stockholders. 

This  charter  is  different  from  that  of  the  Nashville,  Chattanooga  & 
St.  Louis  Railway  in  many  ways.  The  charter  of  the  latter  company 
cannot  be  repealed  or  amended  without  consent  of  company.  See  sec. 
34  of  that  charter. 

SEC.  8.  Directors,  quorum,  powers,  mortgages.— A  major- 
ity of  the  board  of  directors  shall  constitute  a  quorum,  and  shall 
fill  all  vacancies  until  the  next  election.  The  first  board  of  di- 
rectors shall  consist  of  the  five  or  more  corporators  who  shall 
apply  for  and  obtain  the  charter.  The  said  corporation  may 
have  the  right  to  borrow  money  and  issue  notes  or  bonds  upon 
the  faith  of  the  corporate  property,  and  also  to  execute  a  mort- 
gage or  mortgages  as  further  security  for  repayment  of  money 
thus  borrowed. 

SEC.  9.  Condemnation  of  right  of  way;  two  hundred  feet. 

—The  said  corporation  shall  have  the  right,  in  pursuance  of  the 
general  law  authorizing  the  condemnation  of  private  property 
for  works  of  internal  improvement,  as  set  forth  in  §§  1325  to 
1348  in  the  code  (both  inclusive),  to  appropriate,  as  an  ease- 
ment, the  right  of  way,  not  exceeding  two  hundred  feet  over 
the  land  of  any  person  through  which  the  line  of  the  track  may 
be  located.  Said  sections  of  the  code  are  hereby  literally  copied 
and  inserted  in  the  words  and  figures  following: 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         323 

SEC.  10  (1325).  Land  may  be  taken,  hOW.— Any  person  or 
corporation  authorized  by  law  to  construct  any  railroad,  turn- 
pike, canal,  tollbridge,  road,  causeway,  or  other  work  of  in- 
ternal improvement  to  which  the  like  privilege  is  conceded, 
may  take  the  real  estate  of  individuals  not  exceeding  the  amount 
prescribed  by  law,  or  by  the  charter  under  which  the  person  or 
corporation  acts,  in  the  manner  and  upon  the  terms  herein  pro- 
vided. (Iowa  code,  1851,  §759.) 

1.  Disability  of  owner  does  not  affect  right. — The  right  to  take  land 
under  the  power  of  eminent  domain  is  not  restricted  by  any  disability  of 
the  owner,  who  is  entitled  to  demand  and  receive  the  value  of  the  prop- 
erty, but  must  show  title.     3  Head,  63. 

2.  What  property  may  be  taken. — By  Acts  1885,  ch.  135,  the  opera- 
tion of  this  and  succeeding  sections  was  extended  so  as  to  apply  and  in- 
clude the  condemnation  of    private  corporations.      See  Act    itself  for 
method. 

3.  Must  not  take  county  road — By  Acts  1889,  p  447  (Shannon's  code, 
3  1879),  it  was  made  unlawful  to  construct  or  use  any  steam  railway  on 
any  county  road  or  highway,  without  the  consent  of  the  county  court,  to 
be  granted  in  the  method  therein  set  out. 

SEC.  11  (1326).  Proceedings,  petition,  etc.— The  party  seek- 
ing to  appropriate  such  lands  shall  tile  a  petition  in  the  circuit 
court  of  the  county  in  which  the  land  lies,  setting  forth  in  sub- 
stance: (1)  The  parcel  of  land  a  portion  of  which  is  wanted, 
and  the  extent  wanted,  (2)  the  name  of  the  owner  of  such  land, 
or,  if  unknown,  stating  the  fact,  (3)  the  object  for  which  the 
land  is  wanted,  (4)  a  prayer  that  a  suitable  }>ort5on  of  land  may 
be  decreed  to  the  jxititioner,  and  set  apart  by  metes  and  bounds. 
(Iowa  code,  1851,  §  760.) 

The  petition  need  not  be  sworn  to. 

SEC.  12  (1327).  Notice  to  Owner.— Notice  of  this  petition 
shall  IK)  given  to  the  owner  of  the  land,  or,  if  a  nonresident  of 
the  county,  to  his  agent,  at  least  five  days  before  its  presenta- 
tion. (Ib. ,  modified.) 

SEC.  13  (1328).  Where  owner  nonresident.— If  the  owner 

is  a  nonresident  of  the  state,  or  unknown,  notice  shall  be  given 
by  publication  as  provided  in  this  code  in  similar  cases  in  chan- 
cery. 

SEC.  u  (1329).  Proceedings  only  bind  parties.— All  parties 

having  any  interest  in  any  way  in  such  land,  may  be  made  de- 


324:  ORIGINAL    CHARTER   WEST    NASHVILLE    BRANCH 

fendants,  and  the  proceedings  will  only  cover  and  affect  the  in- 
terest of  those  who  are  actually  made  parties,  unborn  remain- 
dermen being,  however,  bound  by  proceedings  to  which  all 
living  persons  in  interest  are  parties. 

Tenants  for  life,  years,  and  reversioners  are  interested  parties,  and 
must  be  compensated.  2  Head  (Tenn. ),  65,  176. 

SEC.  15  (1330).  Writ  of  inquiry  of  damages.— After  the 

requisite  notice  has  been  given,  if  no  sufficient  cause  to  the  con- 
trary is  shown,  the  court  shall  issue  a  writ  of  inquiry  of  dam- 
ages to  the  sheriff,  commanding  him  to  summon  a  jury  to  in- 
quire and  assess  the  damages,  flowa  code,  1851,  §  763.) 

SEC.  16  (1331).  Clerk  to  issue  writ,  sheriff  to  summon 

jury. — By  consent  of  parties,  or  on  application  of  the  plaintiff, 
unless  objection  is  made  by  the  defendant,  the  writ  of  inquiry 
may  be  issued  by  the  clerk,  as  of  course,  after  service  of  notice, 
on  which  the  sheriff  will  summon  the  jury. 

SEC.  17  (1332).  Jury  to  be  disinterested. — The  jurors  shall 
not  be  interested  in  the  same,  or  a  similar  question,  and  shall 
possess  the  qualifications  of  other  jurors,  and  may  be  nominated 
by  the  court,  selected  by  consent  of  parties,  or  summoned  by 
the  sheriff. 

SEC.  18  (1333).  Failure  tO  attend.— If  named  by  the  court, 
and  the  persons  named  are  unable  to  attend  when  summoned, 
the  place  of  such  persons  shall  be  supplied  by  the  sheriff. 

SEC.  19  (1334).  Number  of  jurors,  challenges.— The  jury 

will  consist  of  five  persons,  unless  the  parties  agree  upon  a 
different  number;  and  either  party  may  challenge  for  cause,  or 
peremptorily,  as  in  other  civil  cases. 
See  11  Heis.,  56;  12  Heis.,  56,  57. 

SEC.  20  (1335).  Notice  Of  taking  inquest.— The  sheriff  shall 
give  the  parties  or  their  agents,  if  residents  of  the  county,  three 
days'  notice  of  the  time  and  place  of  taking  the  inquest,  unless 
the  time  has  been  fixed  by  the  order  of  the  court.  (Iowa  code, 

1851,  sec.  771.) 

SEC.  21  (1336).  Jury  to  be  sworn  by  sheriff.— The  jury, 

before  proceeding  to  act,  shall  be  sworn  by  the  sheriff,  fairly 
and  impartially,  without  favor  or  affection,  to  lay  off  by  metes 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.          325 

and  hounds  the  land  required  for  the  proposed  improvement, 
and  to  inquire  and  assess'the  damages. 

SEC.  22  (1337).  To  examine  ground  and  assess  damages. 

—The  jury  will  then  proceed  to  examine  the  ground,  and  may 
hear  testimony,  but  no  argument  of  counsel,  and  set  apart  by 
metes  and  bounds,  a  sufficient  quantity  of  land  for  the  purposes 
intended,  and  assess  the  damages  occasioned  to  the  owner 
thereby.  (Iowa  code,  1851,  §768.) 
See  3  Lea,  48'J. 

SEC.  23  (1338).  Damages,  hOW  estimated.— In  estimating 
the  damages,  the  jury  shall  give  the  value  of  the  land  without 
deduction,  but  incidental  benefits  which  may  result  to  the  owner 
by  reason  of  the  proposed  improvement  may  be  taken  into  con- 
sideration in  estimating  the  incidental  damages. 

For  full  discussion  of  this,  see  Eminent  Dmtutln  herein.    Refer  to  index. 

SEC.  24  (1339).  Report  returned  in  writing.— The  report 

of  the  jury  shall  be  reduced  to  writing,  signed  by  a  majority 
of  the  jurors,  delivered  to  the  sheriff,  and  by  him  returned  into 
court. 

SEC.  25  (1340).  Confirmation  Of  report.— If  no  objection 
is  made  to  the  report,  it  is  confirmed  by  the  court,  and  the 
land  decreed  to  the  petitioner,  upon  payment  to  the  defendants, 
or  to  the  clerk  for  their  use,  of  the  damages  assessed,  with  costs. 
(/£».,  §775,  modified.) 

SEC.  26  (1341).  Exception  to  report  and  new  writ.  -Either 

party  may  object  to  the  report  of  the  jury,  and  the  same  may, 
on  good  cause  shown,  be  set  aside,  and  new  writ  of  inquiry 
awarded.  (Act  1849-50,  ch.  72,  sec.  5.) 

SEC.  27  (1342).  Appeal,  new  trial. — Either  party  may  also 
api>eal  from  the  finding  of  the  jury,  and  on  giving  security  for 
the  costs,  have  a  trial  anew  before  a  jury  in  the  usual  way. 
(//>».,  modified.) 

See  12  Heis.  (Tenn.),  57. 

SEC.  28  (1343).  Costs  against  appellant,  when  not.— If  the 

verdict  of  the  jury  upon  the  trial  affirms  the  finding  of  the 
jury  of  inquest,  or  is  more  unfavorable  to  the  appellant  than 
the  finding  of  such  jury,  the  costs  shall  be  adjudged  against 


326  ORIGINAL    CHARTER    WEST    NASHVILLE    BRANCH 

such  appellant;  otherwise  the  court  may  award  costs  as  in  chan- 
cery cases.  (/&.) 

SEC.  29  (1344).  Appeal  does  not  Suspend  work.— The  taking 
an  appeal  does  not  suspend  the  operations  of  the  petitioner  on 
the  land,  provided  such  petitioner  will  give  bond  with  good 
security,  to  be  approved  by  the  clerk,  in  double  the  amount  of 
the  assessment  of  the  jury  of  inquest,  payable  to  the  defendant, 
and  conditioned  to  abide  by  and  perform  the  final  judgment  in 
the  premises. 

SEC.  30  (1345).  Preliminary  surveys,  damages.— A  person 

or  company  actually  intending  to  make  application  for  the 
privileges  herein  contemplated,  and  entering  upon  the  land  of 
another  for  the  purpose  of  making  the  requisite  examinations 
and  surveys,  and  doing  no  unnecessary  injury,  is  liable  only 
for  the  actual  damage  done;  and  sued  in  such  case,  the  plaintiff 
shall  recover  only  as  much  costs  as  damages.  (Iowa  code, 
1851,  §778.) 

SEC.  31  (1346).  Damages  to  be  prepaid,  or  bond  on  appeal. 

— No  person  or  company  shall,  however,  enter  upon  such  land 
for  the  purpose  of  actually  occupying  the  right  of  way  until  the 
damages  assessed  by  the  jury  of  inquest  and  the  cost  have  been 
actually  paid;  or,  if  an  appeal  has  been  taken,  until  the  bond  has 
been  given  to  abide  by  the  final  judgment  as  before  provided. 

See  6  Cold.,  162;  7  Heis.,  518.  535;  13  Lea,  671. 

SEC.  32  (1347).  Owner  may  have  inquest  or  sue  for  dam- 
ages, When ;  proceedings. — If,  however,  such  person  or  com- 
pany has  actually  taken  possession  of  such  land,  occupying  it 
for  the  purpose  of  internal  improvement,  the  owner  of  such 
land  may  petition  for  a  jury  of  inquest,  in  which  case  the  same 
proceedings  may  be  had,  as  near  as  may  be,  as  hereinbefore 
provided;  or  he  may  sue  for  damages  in  the  ordinary  way,  in 
which  case  the  jury  shall  lay  off  the  land  by  metes  and  bounds 
and  assess  the  damages,  as  upon  the  trial  of  an  appeal  from  the 
return  of  a  jury  of  inquest. 

SEC.  33(1348).  Limitations  of  proceedings  by  owner.— The 

owners  of  land  shall,  in  such  cases,  commence  proceedings 
within  twelve  months  after  the  land  has  been  actually  taken 


NASHVILLE,    CHATTANOOGA    «fe    ST.    LOUIS    RAILWAY.         327 

possession  of,  and  the  work  of  proposed  internal  improvement 
begun,  saving,  however,  to  unknown  owners  and  nonresidents 
twelve  months  after  actual  knowledge  of  such  occupation,  not 
exceeding  three  years,  and  saving  to  |>ersons  under  disabilities 
of  infancy,  coverture,  and  unsoundness  of  mind  twelve  months 
after  such  disability  is  removed,  but  not  exceeding  ten  years. 

SEC.  34.  Gauge,  transportation  charges;  tracks  not  to  ob- 
struct roads,  Streets,  etc. — The  corporation  is  authorized  to 
adopt  such  gauge  as  they  may  prefer.  The  charge  for  trans- 
portation shall  not  exceed  twenty-five  cents  per  hundred  pounds 
on  heavy  articles  and  ten  cents  per  cubic  foot  on  articles  of 
measurement  for  every  hundred  miles  transported,  and  four 
cents  }>er  mile  for  every  passenger,  with  power  to  make  special 
contracts  with  shippers  on  their  roads  in  regard  to  rate  of 
freight,  so  as  not  to  exceed  the  amounts  herein  designated. 
The  line  of  track  of  the  road  shall  be  so  constructed  so  as  not 
to  interfere  with  convenient  travel  of  the  public  along  the  high- 
ways, country  roads,  streets  and  alleys  of  cities,  towns,  and 
villages,  and  so  as  to  allow  carts,  wagons,  carriages,  and  other 
vehicles  conveniently  and  safely  to  pass  over  or  under  the  line 
of  the  track,  and  so  as  not  to  intercept  traveling  on  foot  or 
horseback,  or  in  vehicles  of  any  kind,  from  the  necessary  and 
proj>er  use  of  the  public  roads,  streets,  or  alleys,  in  the  usual 
and  proper  mode  for  their  convenience. 

SEC.  35.  Crossings,  Signboards. — Boards  well  supported  by 
posts  or  otherwise  shall  be  placed  and  constantly  kept  across 
each  public  road,  when  the  same  is  crossed  on  the  same  level 
by  the  track  of  the  railway,  the  Ixmrds  to  be  elevated  so  as  not 
to  obstruct  travel,  and  on  each  side  of  said  boards  there  shall 
be  printed  in  large  letters,  easily  to  be  seen  by  the  traveler,  the 
words:  "Railroad  Crossing — Look  out  for  the  Cars.''  Said 
boards  need  not  l>e  put  up  at  the  crossing  of  streets  and  alleys 
in  cities,  towns,  and  villages,  but  such  railroad  company  shall 
1x3  subject  to  such  proper  regulations  made  by  municipal  au- 
thorities, in  pursuance  of  general  municipal  powers  regulating 
speed,  passage,  and  flagmen  in  such  municipalities  and  at  cross- 
ings; and  when  there  are  sidings  and  switches,  the  whistle  shall 


328  ORIGINAL    CHARTER    WEST    NASHVILLE    BRANCH 

always  be  blown  at  a  distance  of  not  less  than  two  hundred  and 
fifty  yards  from  every  crossing  of  a  public  road.  When  land 
on  both  sides  of  the  track  is  owned  by  the  same  proprietor, 
convenient  crossings  shall  be  made  and  kept  up  at  the  expense 
of  the  corporation  for  the  use  of  said  proprietor,  and  all  neces- 
sary cow-gaps  made. 

SEC.  36.  Regulations  for  running  trains;  fare  must  be 

paid. — The  board  of  directors  shall  fix  the  regular  times  for 
the  running  of  trains  for  the  transportation  of  passengers  and 
property,  and  shall  furnish  sufficient  accommodation  for  the 
safe,  comfortable,  and  convenient  transportation,  and  shall  take, 
transport,  and  discharge  such  passengers  and  property  at,  from, 
and  to  such  places  on  the  due  payment  of  freights,  tolls,  and 
fare  legally  authorized  to  be  charged  therefor,  and  in  case  of 
the  refusal  of  said  corporation,  their  officers  or  agents,  to  take 
and  transport  any  passenger,  or  to  deliver  the  same,  or  either 
of  them,  at  the  regular  and  appointed  time,  such  corporation 
shall  pay  to  the  party  aggrieved  all  damages  thereby  suffered, 
with  costs  of  suit.  If  any  passenger  refuse  to  pay  his  toll  or 
fare,  the  conductor  may  put  him  off  the  cars  at  any  station  or 
convenient  point  where  said  passenger  can  step  on  land. 

SEC.  37.  Prohibited  contracts,  must  receive  freight  from 

Other  roads. — The  corporation  shall  make  no  contract  giving 
any  person  a  preference  in  the  speedy  shipment  of  freights. 
This  corporation  shall  receive  on  their  road  fall  freighted  cars 
from  other  roads,  and  transport  them,  without  breaking  bulk, 
to  the  place  of  destination,  charging  for  the  goods,  wares,  and 
merchandise  therein  no  greater  rate  of  freight  than  is  charged 
for  similar  goods,  wares,  and  merchandise  in  their  own  cars, 
and  return  said  cars  free  of  charge;  Provided,  The  cars  thus  to 

O      '  7 

be  received  are  good  and  substantial,  and  also  provided  the 
distance  said  wares  and  merchandise  are  to  be  transported  is 
not  less  than  twenty  miles. 

SEC.  38.  Officers  and  directors,   capital  stock,  shares, 

books. — The  said  five  or  more  corporators  shall,  within  a 
convenient  time  after  the  registration  of  this  charter  in  the 
office  of  the  secretary  of  state,  select  from  their  number  a 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          329 

president,  secretary,  and  treasurer,  or  the  last  two  offices  may 
be  combined  into  one,  and  shall  not  necessarily  be  stockholders, 
said  president  and  the  other  corporators  to  constitute  the  first 
board  of  directors.  The  hoard  of  directors  may  fix  the  amount 
of  capital  stock  of  the  company  and  the  number  of  shares  into 
which  the  same  may  be  divided,  and  under  their  direction  sub- 
scription books  may  be  opened  to  obtain  stock,  all  other  per- 
sons having  an  equal  right  with  said  original  cor|x>rators  to 
subscribe  for  stock  until  the  full  amount  of  said  capital  stock  is 
subscribed.  When  a  sufficient  amount  of  stock  is  subscril>ed, 
notice,  personal  or  by  advertisement  in  a  newspaper  where  the 
principal  office  of  the  corporation  is  to  be  kept,  is  to  l>e  given 
of  the  time  and  place  of  an  election  of  officers.  The  result  of 
all  elections  is  to  be  determined  by  a  majority  of  the  votes  cast, 
each  share  to  represent  one  vote. 

SEC.  39.  Directors  may  increase  capital.— The  board  of  di- 
rectors may,  at  any  time,  increase  the  capital  stock,  if  the 
necessities  of  the  corporation,  in  their  estimation,  require  said 

increase. 

The  capital  stock  was  increased  to  $80,000.  See  secretary  of  state's 
office,  book  PR  p.  107. 

SEC.  40.  May  enter  upon  private  lands.— The  company,  by 

its  officers  or  agents,  may  enter  upon  the  lands  of  private  per- 
sons for  the  purpose  of  making  surveys,  estimates,  and  location 
of  route. 

SEC.  41.  Shares  of  stock  personalty. — The  stock  is  to  be 

impressed  with  the  character  of  personal  projxjrty. 

We,  the  undersigned,  apply  to  the  State  of  Tennessee,  by 
virtue  of  the  law  of  the  land,  for  a  charter  of  incorporation  for 
the  purposes  and  with  the  j>owers,  etc.,  declared  in  the  fore- 
going instrument. 

Witness  our  hands,  this  sixteenth  day  of  March,  1887. 

NORMAN  M.  PIERCE, 
VOLNKY  JAMES, 
L.  H.  DAVIS, 

H.    W.    BUTTORFF, 

H.  M.  PIERCE. 

The  above  charter  was  properly  acknowledged  and  registered  in  the 
register's  office  of  Davidson  county,  in  book  103,  p.  1,  and  in  secretary 
of  state's  office,  in  book  F,  p.  126. 


330  DEED    TO    WEST    NASHVILLE    BRANCH 


CHAPTER   XXIX. 

DEED  TO  WEST  NASHVILLE  RAILWAY. 

NASHVILLE  LAND  IMPROVEMENT  COMPANY  \ 

TO — -Deed. 
NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY.  ) 

WHEREAS,  The  Nashville  Land  Improvement  Company,  a 
corporation  chartered  under  the  laws  of  the  State  of  Tennessee, 
is  the  owner,  by  deed  and  otherwise,  of  a  railroad  consisting  of 
track  bed,  steel  rails,  cross-ties,  and  a  right  of  way  forty  feet 
in  its  entire  width,  or  of  twenty  feet  on  either  side  of  the  center 
of  the  track  as  now  laid  out  and  fenced,  together  with  the  fran- 
chise to  operate  the  same,  and  other  rights  and  privileges 
hereunto  appertaining  and  belonging,  with  depots  and  depot 
grounds,  buildings,  switches,  etc.,  extending  from  a  point  on 
the  Northwestern  division  of  the  Nashville,  Chattanooga  &  St. 

'  O 

Louis  Railway,  two  and  six-tenths  miles  from  Church  street, 
twelve  thousand  feet  to  a  point  near  Cumberland  river,  and 
wherever  said  land  improvement  company  own  other  lands  be- 
yond the  terminus  of  said  road,  and  desire  to  have  said  road 
extended  as  hereinafter  indicated;  and, 

WHEREAS,  Said  land  improvement  company  desires  to  sell 
said  railroad,  and  all  its  franchises,  rights,  privileges,  etc.,  as 
more  fully  set  out  herein,  to  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  and  to  secure  to  itself  thereby  certain  benefits 
of  transportation  freightage; 

Now,  in  consideration  of  this  conveyance,  and  the  mutual 
covenants,  agreements,  and  undertakings  herein  specified  and 
set  out,  the  said  land  improvement  company  does  hereby  bar- 
gain and  sell,  alien  and  confirm  and  convey,  to  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  and  its  assigns  and  its  suc- 
cessors forever,  the  following  real  and  personal  estate,  viz. : 
Said  railroad  tracks  as  now  located,  laid  out  and  built,  com- 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         331 

mencing  at  a  point  on  the  Northwestern  division  of  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  as  indicated  in  the 
preamble  hereto,  for  the  distance  of  12,000  feet,  to  a  point 
near  the  Cumberland  river,  and  to  station  120  of  said  railroad 
tracks,  and  continuing;  from  that  point  north  2  3"  east  25  feet 
from  station  120;  running  thence  north  87°  31"  west  1,110 
feet;  thence  north  2°  30"  east  25  feet;  thence  north  87°  30"  west 
33.3  feet;  thence  on  a  3^  curve  to  right  1,200  feet;  thence 
north  37°  25"  west  2,654  feet;  thence  south  32s  35"  west  100 
feet;  thence  south  57°  25"  east  2,654  feet;  thence  on  a  3° 
curve  to  left  1,204  feet;  thence  south  87C  30"  east  1,143.3  feet; 
thence  north  2  3"  east  75  feet  to  the  beginning,  together  with 
all  the  steel  rails,  cross-ties,  fastenings,  spikes,  switches,  turn- 
outs, fences,  depots  and  depot  buildings,  warehouses,  sheds, 
and  all  appurtenances  upon,  over,  and  along  said  track  as  laid 
out,  or  upon  said  right  of  way  as  indicated  herein.  Also  does 
sell,  bargain,  and  convey  all  its  franchises,  rights,  Franchlses 
and  privileges  given  or  conferred  by  its  charter.  pass> 
Said  rights  of  way  consist  of  forty  feet  of  land,  or  twenty 
feet  from  the  center  of  said  track  on  either  side 

,  .    .  ,.          ,  Right  of  way. 

between  the  two  termini  mentioned,  except  as  par- 
ticularly specified,  and  except  along  that  portion  of  said  track 
which  passes  through  the  land  of  Joseph  Elliston.  On  his  por- 
tion of  said  track  the  width  thereof  is  n  sufficient  number  of 
feet  on  either  side  of  each  track  as  now  laid  out  to  lay  a  double 
track.  Also  it  does  alien  and  convey  all  its  depots  and  depot 
grounds  as  now  laid  off  and  built  upon,  as  shown  upon  plan 
No.  1  of  said  land  improvement  company.  Also  does  it  bar- 
gain and  sell,  alien,  confirm,  and  convey,  by  this  deed,  blocks 
85),  10,  12,  31,  and  33,  as  laid  out  and  described,  and  bounded 
as  shown  on  said  plan  No.  1  of  said  land  improvement  com- 
pany, which  plan  is  registered  in  the  register's  office  of  David- 
son county,  book  57,  pp.  74,  75. 

And  the  said  Nashville  Land  Improvement  Company  hereby 
covenants  with  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
and  its  successors  and  assigns  forever,  that  it  is  lawfully  seized 
and  possessed  of  each  and  every  part  and  parcel  of  the  real  es- 


332  DEED    TO    WEST    NASHVILLE    BRANCH 

tate  hereinbefore  described,  and  of  the  rights  of  way  hereinbe- 
fore described,  to  the  width  and  extent  set  out,  and  of  the  other 
property  herein  described,  and  that  it  has  a  good  right  to  con- 
vey the  same,  and  that  the  same  is  free  of  all  liens,  taxes, 
mortgages,  and  other  incumbrances  whatever;  and  it  forever 
warrants  and  defends  the  tit'.e  of  the  same  to  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  its  successors  and  assigns 
forever.  The  Nashville,  Chattanooga  &  St.  Louis  Railway,  in 
consideration  of  the  premises,  covenants  and  binds  itself  to  take 
said  property  for  railroad  purposes,  and  use  and  operate  the 
same  as  a  railroad,  with  a  view  to  develop  the  best  interest  of 
the  land  improvement  company,  and  it  also  agrees  and  binds 
itself  to  run  and  operate  trains  along  and  upon  said  road  at  the 
following  rates  for  passengers  and  freights:  That  it  will  charge 
between  West  Nashville  and  the  Church  street  depot  of  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  not  exceeding  one  cent 
per  hundred  pounds  either  way  in  full  carloads  on  lumber, 
brick,  stone,  machinery,  lime,  sand,  coal,  coke,  pig  iron,  wood, 
or  heavy  freight  for  building  purposes;  also  raw  material  for 
manufacturing  purposes,  and  the  products  of  factories  located 
in  West  Nashville,  said  freight  to  be  loaded  and  unloaded  by 
shippers  or  consignee,  and  that  it  will  not  charge  on  any  other 
freight  between  said  points  exceeding  ten  cents  per  hundred 
pounds,  and  that  no  transfer  charge  will  be  made  either  way 
between  Nashville  and  West  Nashville  upon  shipments  of  freight 
to  or  from  West  Nashville  to  or  from  points  on  or  reached  via 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  or  the  Louis- 
ville &  Nashville  Railroad.  The  Nashville,  Chattanooga  &  St. 
Louis  Railway  also  agrees  and  covenants  to  run  from  Church 
street  to  the  terminus  of  the  West  Nashville  Railway  in  West 
Nashville,  three  passenger  trains  daily  each  way — one  in  the 
morning,  one  at  noon,  and  one  in  the  evening — charging  five 
cents  per  passenger  each  way,  and  will  run  to  the  passenger 
depot  in  West  Nashville  four  other  passenger  trains  daily  each 
way — two  in  the  morning  and  two  in  the  afternoon — if  re- 
quested to  do  so  by  the  land  improvement  company,  and  such 
other  trains  as  the  business  may  require,  and  may  charge  five 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         333 

cents  {)cr  passenger  each  way;  and  it  is  further  understood  and 
agreed  that  it  will  make  special  rates  for  school  children,  and 
that  none  of  the  above  rates  include  baggage;  and  it  also  agrees 
as  manufactories  are  consecutively  erected  along  the  line  of 
road  as  indicated  herein,  that  it  will  extend  the  same  along  the 
line  thereof  and  upon  the  right  of  way  as  indicated  herein. 

This  July  6,  1887. 

NASHVILLE  LAND  IMPROVEMENT  COMPANY, 

[SEAL.]  By  H.  M.  PIERCE,  President, 

C.  FLISHER,  Secretary. 
STATE  OF  TENNESSEE,  ) 
Davidson  County.      f 

Before  me,  J.  C.  McReynolds,  notary  public  in  and  for  said 
state  and  county,  personally  appeared  H.  M.  Pierce  and  C. 
Flisher,  with  whom  I  am  personally  acquainted,  the  said  H. 
M.  Pierce  being  known  to  me  to  be  the  president  and  the  said 
C.  Flisher  being  known  to  be  the  secretary  of  the  Nashville 
Land  Improvement  Company,  the  bargainor,  and  they  severally 
acknowledged  that  said  company  and  they,  as  its  president  and 
secretary,  respectively,  executed  the  foregoing  instrument  for 
the  purposes  therein  expressed.  And  the  said  H.  M.  Pierce 
and  C.  Flisher,  being  by  me  first  duly  sworn,  did  severally  de- 
pose and  say  that  the  said  H.  M.  Pierce  was  the  president  of 
the  Nashville  Land  Improvement  Company,  the  within  named 
bargainor,  and  the  said  C.  Flisher  was  the  secretory  thereof; 
that  they  knew  the  corporate  seal  of  said  company,  and  that 
the  seal  affixed  to  the  foregoing  instrument,  purjx)rting  to  be 
the  corporate  seal  of  said  company,  was  such  corj>orate  seal, 
and  that  the  same  was  thereto  affixed  by  order  of  the  board  of 
directors  of  said  company,  and  that,  by  like  authority,  they 
severally  subscribed  their  names  thereto  as  president  and  sec- 
retory of  said  company,  and  as  its  said  act  and  deed,  for  the 
purposes  therein  expressed.  Witness  my  hand  and  seal,  this 
sixth  day  of  July,  A.D.  1887. 

[SEAL.]  J.  C.  MCREYNOLDS,  Xotary  Public. 


334  DEED  TO  WEST  NASHVILLE  BRANCH 

The  transfer  of  the  West  Nashville  Railway  to  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  upon  the  terms  and  condi- 
tions set  out  in  the  annexed  deed,  is  hereby  accepted,  in  pur- 
suance of  authority  given  by  the  board  of  directors  and  stock- 
holders of  this  company  at  their  annual  meeting  held  this  day. 
Nashville,  Tennessee,  September  14,  1887. 
THE  NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 

BY  J.  W.  THOMAS,  President. 
J.  H.  AMBROSE,  Secretary. 

STATE  OF  TENNESSEE,  ) 

Davidson  County.       j" 

Personally  appeared  before  me,  J.  T.  Spaulding,  a  notary 
public  in  and  for  the  county  aforesaid,  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  by  J.  W.  Thomas,  president,  and 
J.  H.  Ambrose,  secretary,  with  both  of  whom  I  am  person- 
ally acquainted,  and  who  acknowledged  that  they  each  exe- 
cuted the  foregoing  instrument  for  the  purposes  therein  con- 
tained. 

Witness  my  hand  and  notarial  seal,  at  Nashville,  Tennessee, 
this  fourteenth  day  of  September,  1887. 

[SEAL.]  J.  T.  SPAULDING, 

Notary  Public. 

Received  September  14,  1887,  at  4:40.  Registered  in  R.  O. 
D.  C.,  in  book  109,  p.  47. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         335 


CHAPTER   XXX. 

WESTERN  A  ATLANTIC  RAILROAD. 
[WESTERN  &  ATLANTIC  BRANCH.] 

How  acquired  by  the  Nashville.  Chattanooga  &  St.  Louis 

Railway. — The  Western  &  Atlantic  Kail  road,  which  extends 
from  the  city  of  Atlanta,  Ga.,  to  the  city  of  Chattanooga, 
Tenn.,  a  distance  of  138  miles,  is  owned  by  the  State  of  Geor- 
gia. On  November  12,  1889,  the  legislature  of  that  state 
passed  an  act  authorizing  the  road  to  be  leased.  Advertise- 
ment was  made  for  bids,  in  conformity  to  the  provisions  of 
the  act,  and  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
submitted  a  proposition,  in  writing,  offering  to  lease  the  road, 
together  with  all  its  houses,  workshops,  rolling  stock,  depots, 
and  appurtenances  of  every  kind  and  character,  subject  to  the 
provisions  of  the  act  above  referred  to,  for  the  period  of  twenty- 
nine  (29)  years,  and  agreeing  to  pay  therefor  the  sum  of  thirty- 
five  thousand  and  one  dollars  (#35,001)  per  month  as  rental 
for  the  same.  This  bid  was  accepted  June  30,  1890,  and  on 
July  19,  1890,  the  governor  of  the  state  formally  executed  the 
lease  contract,  which  was  to  take  effect  immediately  after  the 
termination  of  a  then  existing  one  which  had  been  executed  on 
December  27,  1870,  and  was  to  expire  twenty  years  thereafter. 
The  act  of  November  12,  1889,  authorizing  the  lease  may  be 
found  further  on  in  this  chapter,  and  the  lease  contract  is  set 
out  in  the  next. 

1.  When  road  built  by  Georgia.— The  Western  A  Atlantic  Railroad 
was  authorized  to  be  built  by  an  act  of  (Jeorgia  approved   December  21, 
183t>,  and  amended  by  acts  December  23.  1837:    December  2U,   1838  (two 
acts);   December  18,  1838;  December  21.  183'.l;  December  24,  1840;  Decem- 
ber 4,   1841;  December  1»,   1842;  December  22,   1843;  December  24.   1845; 
December  2fl,  184f>;  December  27.  184.r>;  December  30,  1847;   December  23, 
1847;  February  23,   ISM)  (two);  February  8.  1850. 

2.  Legality  of  lease.— The  Nashville.  Chattanooga  &  St.  Louis  Kail- 
way  had  the  power  to  lease  this  road.     Under  the  Acts  of  Tennessee, 
1857-58,  ch.  8,  p.  5,  it  was  granted   the  authority  to  lease  any  railroad 


336        ABSTRACT    OF    TITLE    WESTERN    &    ATLANTIC    BRANCH 

connecting  with  it  for  such  time  and  upon  such  terms  and  conditions  as 
might  be  agreed  upon.  In  addition,  the  authority  was  also  conferred 
by  Acts  1869-70,  ch^  49,  p.  327,  sec.  4;  1871,  ch.  69;  1881,  ch.  9,  p  10,  sec. 
2.  Authority  to  lease  has  been  enlarged  subsequently  to  the  execution 
of  the  lease  contract  by  Acts  1891.  ch.  61,  p.  146,  and  ch.  125,  p.  274.  The 
lease  act  itself  gave  axithority  in  Georgia,  though  the  power  was  already 
possessed.  See,  also,  general  discussion  herein  under  the  power  to 
Lease.  Refer  to  index. 

3.  What  personal  property  passed  under  lease. — In  addition  to  the 
railroad,  the    Nashville.  Chattanooga  &   St.  Louis  Railway  also  came 
into  possession  of  the  following    property   under  said  lease  contract: 
Forty-five  locomotives,  valued  by  the  state  at  $161,526  and  by  lessee  at 
$109,300;  32  passenger,  baggage,  and  postal  cars,  valued  by  state  at  $66,- 
600  and  by  lessee  at  $o5,200;  455  box  cars,  valued  by  state  at  $91,910  and 
by  lessee  at  $68,250;  120  coal  cars,  valued  by  state  at  $21,000  and  by  lessee 
at  $15, 000;  100  flat  cars,  valued  by  state  at  $16, 000  and  by  lessee  at  $10,000; 
15  stock  cars,  valued  by  state  at  $4,005  and  by  lessee  at  $2,250;  a  large 
quantity  of  tools,  supplies,  etc.,  valued  by  the  state  at  $33,093.60  and 
by  lessee   at  $33,093.60.      All  the  foregoing   property  is  carefully  and 
accurately  itemized  and  is  now  on  file  in  the  secretary's  office,  and  is 
itemized  and  set  out  in  full  in  next  chapter. 

4.  Relation  state  of  Georgia  bears  to  road. — See  §964  of  the  code 
of  Georgia,  1882.     See  also,  54  Georgia,  635;  28  Georgia,  180. 

5.  What  laws  applicable  to  road.  — See   I  965   et  seq.  of  the  code  of 
Georgia,  1882.     See  also,  "  Lease  Act"  further  on  in  this  chapter. 

Width  Of  right  Of  way. — There  is  nothing  in  the  acts  of 

Georgia,  approved  December  21,  1836,  or  amendments  thereto, 
authorizing  the  road  to  be  built,  which  specifies  any  particular 
number  of  feet  to  be  appropriated  for  a  right  of  way,  nor  is 
there  any  clause  providing  for  a  specified  width  in  the  absence 
of  any  contract  with  the  original  landowner,  where  he  failed  to 
apply  in  time  for  assessment.  This  being  so,  the  width  of  right 
of  way  in  Georgia  will  depend  upon  the  actual  amount  appro- 
priated through  each  landowner's  premises,  and  to  determine 
which  reference  must  be  had  to  the  records  on  file  in  each 
county  through  which  the  road  runs.  The  state  claims,  how- 
ever, to  own  thirty -three  feet  on  each  side  of  the  center  of  the 
road. 

In  Tennessee  the  width  of  right  of  way  is  ascertained  differ- 
ently. By  Acts  Tenn.,  1837-8,  ch.  221,  p.  319,  the  Western 
&  Atlantic  Railroad  was  authorized  to  be  built  in  Tennessee, 
with  all  the  rights,  privileges,  etc.,  of  the  Hiwassee  Railroad 
Company,  and  by  Acts  1847-8,  ch.  195,  p.  330,  all  the  rights, 
privileges,  and  immunities  of  the  Nashville  &  Chattanooga 
Railroad  Company  were  conferred  upon  the  State  of  Georgia 
in  the  construction  of  said  road.  Sections  24  and  25  of  the 


NASHVILLE,    CHATTANOOGA    4    ST.    LOUIS    RAILWAY.         337 

charter  of  the  Nashville  &  Chattanooga  Railroad  Company 
grant  it  one  hundred  feet  on  either  side  of  the  center  of  the 
road,  in  the  absence  of  any  contract  with  the  original  landowner 
to  the  contrary,  where  he  failed  to  apply  in  time  for  assess- 
ment of  damages.  5  Pickle  (Tenn.),  293. 

For  a  full  discussion  of  this,  see  notes  to  sees.  24  and  25  of 
the  charter  of  the  Nashville  &  Chattanooga  Railroad  Company, 
ch.  1  herein. 

1.  The  Acts  of  Tenn.,  1837-8,  ch.  221,  and  Acts  1847-8,  ch.  195.  above 
referred  to,  are  set  out  in  the  next  chapter  among  the  Tennessee  acts 
relating  to  the  Western  «fc  Atlantic  Railroad. 

2.  Hiwassee  Railroad  Company  charter.  —  For.  charter  of  Hiwassee 
Railroad  Company,  see  p.  63  herein. 

3.  Nature  of  company's  control  of  right  of  way.— The  dominion  of  a 
railroad  corporation  over  its  trains,  tracks,  and  right  of  way  is  no  less 
complete  or  exclusive  than  that  which  every  owner  has  over  his  own 
property.     Hence  the  corporation  may  exclude  or  admit  whom  it  pleases 
when  they  come  to  transact  their  own  private  business  with  passengers 
or  other  persons.     This  applies  to  selling  lunches  to  or  soliciting  orders 
from  passengers,  and  a  mere  implied  license,  no  matter  how  long  en- 
joyed, to  transact  such  business,  for  which  no  compensation  has  been 
paid,  is  revocable  at  any  time.     81  Ga.,  461.     See,  also,  general  discussion 
herein,  under  Rhjlit  of  Way,  Rules  and  Regulations.    .Refer  to  index. 

4.  Map  of  right  of  way. — By  Acts  Ga.,  approved  December  16,  1895,  a 
map  of  the  entire  line  of  the  Western  &  Atlantic  Railroad  has  been 
made,  and  is  now  on  file  in  the  secretary  of  state's  office.  A  certified 
copy  thereof  is  admitted  as  prlnui  facie  evidence  by  terms  of  act. 

ACT  AUTHORIZING  LEASE  OF  WESTERN  & 
ATLANTIC  RAILROAD,  AND  INCORPO- 
RATING LESSEES. 

[Acts  Georgia,  1889,  p.  362.] 

SECTION  1.  Governor  authorized  to  lease  Western  &  Atlantic 

Railroad;  terms. —  Be  it  enacted  by  the  Senate  and  Home  of 
Representatives  of  the.  State  of  Georgia,  in  General  Assembly 
met,  That  the  governor  of  the  state  l>e,  and  he  is  hereby,  au- 
thorized to  lease  the  Western  &  Atlantic  Railroad,  together 
with  all  its  houses,  workshops,  rolling  stock,  depots,  and  ap- 
purtenances of  every  kind  and  character,  to  a  company  or  cor- 
poration, or  to  any  party  or  parties,  who  shall  give  good  and 
sufficient  security  as  hereinafter  provided  for;  the  said  lease 
to  take  effect  and  become  operative  f rom  and  after  the  expira- 
tion of  the  present  lease,  upon  the  following  terms  and  accord- 


338  ACT    LEASING    WESTERN    &    ATLANTIC    BRANCH 

ing  to  the  folio  win  provisions:  The  said  lease  to  be 
Temrsoflease.       c  .  , 

for  a  term  of  not  less  than  twenty  years,  and  for  a 

sum  of  not  less  than  thirty-five  thousand  dollars  per  month; 
or  for  a  term  of  not  less  than  thirty  years,  and  for  a  sum  of 
not  less  than  forty  thousand  dollars  per  month;  or  for  a  term 
of  fifty  years,  and  for  a  sum  of  not  less  than  forty-five  thousand 
dollars  per  month,  the  rental  to  be  paid  monthly  into  the  treas- 
ury of  the  state,  for  the  use  of  the  state. 

Lease,  when  made. — When  advertisement  was  made  under  this  act, 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  submitted  a  bid,  which 
was  accepted  June  30.  1890,  and,  on  July  19,  1890,  the  governor  of  the 
state  formally  executed  the  lease  contract  to  said  railroad  company.  See 
contract  of  lease  in  ne^t  chapter. 

SEC.  2.  Governor  tO  advertise  for  bids.— Be  It  farther  en- 
acted, That  the  governor  shall  advertise  for  four  weeks,  weekly 
(immediately  preceding  the  twenty-seventh  of  June,  1890),  in 
such  newspapers  in  the  State  of  Georgia  as  he  ma}7  designate, 
the  number  not  to  exceed  four,  and  also  one  leading  newspaper 
in  each  of  the  following  cities:  Chicago,  111.,  Cincinnati,  Ohio, 
New  York,  N.  Y. ,  such  advertisement  to  be  a  definite  proposal 
for  bids  as  authorized  by  this  lease  act  for  the  lease  of  the  Wes- 
tern &  Atlantic  Railroad  and  other  property  in  this  act  re- 
ferred to. 

SEC.  3.  Bids,  how  made  and  opened ;  rejection  of,  readver- 

tisement. —  Be  i.t  further  enacted.  That  all  bids  for  the  lease 
of  said  road  shall  be  submitted,  in  writing,  to  the  governor  of 
this  state,  on  or  before  the  twenty-seventh  day  of  June,  1890, 
Check  for  and  accompanied  by  a  certified  check  for  §25,000, 

$25,000  to  /  .         ,. 

accompany  bid.  on  some  good  and  solvent  bank  in  this  state,  as  a 
guarantee  of  the  good  faith  of  the  bidder,  to  be  forfeited  to  the 
state  if  the  bid  is  accepted  by  the  state  and  the  terms  thereof 
shall  not  be  complied  with  by  the  bidder.  And  the  governor, 
comptroller-general,  secretary  of  state,  treasurer,  and  attorney- 
general,  or  a  majority  of  them,  within  three  days  after  the  ex- 
piration of  the  time  allowed  for  the  reception  of  bids,  shall 

open  and  examine  said  bids  in  the  presence  of  the 
Opening  bids.  ...  .  .  ,  ,  ,,     .  ,.  , 

public  and  the  bidders  or  their  representatives  who 

may  be  present;  and  the  governor  shall  give  due  notice  of  the 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         339 

time  and  place  of  such  opening  and  examination  of  the  bids  by 
publishing  the  same  in  daily  newspapers  in  the  city  of  Atlanta 
one  time,  and  determine  which  shall  be  accepted,  with  the  right 
to  reject  any  and  all  bids;  and,  in  accepting  bids,  everything 
else  being  equal,  the  highest  and  best  bidder  for  the  longest 
term  shall  be  accepted. 

In  the  event  all  bids  are  rejected,  then  the  governor  shall,  in 
ten  days  thereafter,  readvertise  the  road  under  the  same  terms 
and  conditions.      In  case  the  bidder  accepted  by  the  ,n  case  allblds 
state  shall  fail  to  comply  with  his  bid  and  take  the  reJ*cted- 
road,  it  shall  be  readvertised,  and  the  bidder  shall  be  liable  to 
the  state  for  whatever  damages  may  result  to  the  state  from 
his  failure  to  comply  with  his  bid,  in  addition  to  the  twenty-five 
thousand  dollars  forfeited  under  this  section;   Pro- 
vided, That  no  price  less  than  that  named  in  section 
1,  for  the  several  terms,  shall  be  accepted. 

SEC.  -L  How  lease  contract  to  be  drawn  and  executed,  de- 
posit of  bonds. —  Be  it  further  enacted,  That  any  contract  of 
lease  entered  into  under  this  act  shall  be  drawn  and  prepared 
by  the  attorney-general  of  this  state,  signed  in  du-   Contract  must 
plicate  by  the  parties  leasing  said  road  and  the  gov-  J'torney6-0  by 
ernor  of  the  state.     And,  within  twenty  days  after  *eneral- 
the  acceptance  of  the  bid,  the  successful   bidder  shall  execute 
the  contract  required  and  make  the  deposit  of  bonds  with  the 
treasurer,  to  which  bonds  he  shall  have  access,  for  the  purjx^se 
of  drawing  the  interest  thereon. 

SEC.  5.  Bonds  to  be  deposited,  conditions  thereof,  lease  for- 
feited, When. — Be  it  further  enacted,  That  said  lessees  shall 
deposit  with  the  treasurer  of  the  state  recognized  valid  bonds 
of  the  State  of  Georgia,  or  of  the  United  States,  of  the  par 
value  of  five  hundred  thousand  dollars,  and  should  said  bonds, 
at  any  time,  depreciate  in  value  l>elow  their  par  value,  or  be  re- 
duced in  payment  of  penalty  in  the  nature  of  forfeiture,  said 
lessees  shall,  within  thirty  days,  make  good  said  dejwsit,  on  l>eing 
notiHed  thereof  by  the  governor,  by  the  deposit  of  other  bonds  of 
like  kind  as  above,  so  that  bonds  of  the  par  and  market  value  of 
five  hundred  thousand  dollars  shall,  at  all  times,  l>e  deposited  with 


340  ACT    LEASING    WESTERN    &    ATLANTIC    BRANCH 

the  treasurer  as  aforesaid,  and,  in  default  thereof,  the  governor 

may,  in  his  discretion,  declare  said  lease  forfeited, 
Forfeiture.  .  ,  .      .  . 

with  all  the  incidents  of  forfeiture  herein  provided. 

It  shall  be  the  duty  of  the  governor  and  treasurer,  from  time 
Value  of  bonds  ^°  time,  *o  inquire  into  the  value  of  said  bonds  so 
portedbtorfeg-  deposited  and  report  the  same  to  each  session  of  the 
legislature,  and  said  bonds  shall  be  held  as  collat- 
eral security  by  the  state  for  the  faithful  performance  of  all  the 
terms,  obligations,  and  contracts  of  the  lessees  under  said  lease. 

In  compliance  with  the  terms  of  the  above  section,  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  deposited  with  the  treasurer  of  the 
State  of  Georgia,  when  the  lease  was  executed,  the  following  bonds  of 
the  State  of  Georgia,  which  are  now  held  by  him,  subject  to  the  condi- 
tions of  this  act:  Nos.  21  to  40,  due  1921,  for  $5.000  each,  making  $100,- 
000;  Nos.  41  to  60,  due  1922,  for  $5,000  each,  making  $100,000;  Nos.  61  to 
70,  due  1924,  for  $5,000  each,  making  $50,000;  Nos.  71  to  90,  due  1924,  for 
$5,000  each,  making  $100,000;  Nos.  91  to  110,  due  1925,  for  $5,000,  each 
making $100,000;  Nos.  Ill  to  120,  due  1926,  for  $5,000  each,  making  $50, 000; 
total,  $500,000. 

SEC.  6.  Bonds  collateral  security  for  faithful  performance 

Of  lease;  additional  Security.—^  it  further  enacted,  That  the 
bonds  deposited  under  the  requirements  of  the  fourth  section 
shall  be  regarded  merely  as  collateral  security  for  the  faithful 
performance  by  the  lessee  of  the  terms  of  the  lease  contract, 
and  shall  not  be  held  as  exhaustive  of  other  rights  of  the  state 
as  lessor.  And  after  said  bonds  have  been  applied  in  whole 
or  part,  as  damage,  penalty,  or  forfeiture  for  any  act  done  or 
omitted  to  be  done,  or  any  violation  of  the  terms  of  the  lease 
as  herein  provided,  the  original  party  to  the  lease,  whether  cor- 
poration, person,  or  persons,  as  well  as  the  company  chartered 
hereby  as  Western  &  Atlantic  Railroad  Company,  shall  be  liable 
further  to  the  State  of  Georgia  for  any  damage  caused  the  state 
by  any  breach  or  forfeiture,  under  said  contract,  of  this  act.  In 
Additional  addition  to  the  deposit  as  security  required  by  the 
security.  terms  of  this  act,  and  the  personal  and  corporate 

liability  imposed  by  the  terms  of  this  act,  the  legislature  may 
at  any  time  require  the  lessee  or  lessees  to  enter  into  bond  with 
good  security,  to  be  approved  by  the  governor  and  attorney- 
general,  in  such  sum,  not  to  exceed  tive  hundred  thousand  dol- 
lars, as  the  legislature  may  deem  necessary  to  fully  protect  the 
interest  of  the  state. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.          341 

.  7.  Betterments;  road  to  be  kept  first-class;  examin- 
ers; lessee  to  report  to  legislature,  when.— Be  it  furtlw  en- 

>/'/«/,  That  when  the  roa<l  is  leased  under  the  provisions  of  this 
act,  it  shall  l>e,  and  is  hereby,  distinctly  provided  that  all  im- 
provements, betterments,  or  ameliorations  whatever,  shall  be 
made  at  the  expense  of  the  lessee  or  lessees,  and  no  claim  for 
such  will  ever  )>e  entertained  or  allowed  by  the  state.  All  at- 
tachments to  the  realty  shall  be  considered  permanent.  It  is 
also  distinctly  provided  that  the  lessee  or  lessees  shall,  at  all 
times,  keep  the  said  road  in  the  condition  of  first-class  roads  in 
Georgia,  safely  and  expedltiously  to  carry  on  the  business  of 
said  road.  The  governor  of  the  state  shall  have  the  power  to 
appoint  a  board  of  examiners,  to  consist  of  three,  Boafd  of 
and  the  board  of  examiners  so  appointed  shall  have  ex»mlners- 
the  power  to  subpoena  witnesses  and  examine  them,  and  also  the 
power  to  require  the  production  of  books,  contracts,  and  any 
and  all  kinds  of  writings  that  may  throw  light  or  information  upon 
the  subject-matter  or  matters  under  investigation.  And  if,  by  re- 
port of  the  examiners  appointed  by  the  state's  authorities,  it  shall 
appear  that  the  lessee  or  lessees  have  permitted  said  road  to  be 

reduced  to  a  condition  below  the  first-class  roads  of  Lessee  liable 
...  ..       .  ,  for  deteriora- 

this  state,  or  any  of  said  property  has  been  lost,  con-  tion  in  value. 

sumed,  or  permanently  removed  from  the  state,  the  lessee  or  les- 
sees shall  be  liable  for  such  depreciation  or  deterioration,  or  loss, 
consumption,  or  removal,  and  the  governor  of  the  state  shallapply 
a  sufficiency  of  the  bonds  deposited  as  security  to  restore  said  road 
to  its  condition  at  the  date  of  the  aforesaid  previous  examination; 

Pweided,  That  l>efore  proceeding  under  and  by  vir- 

,  .      .j  .  Proviso, 

tue  of  any  report  of  said  examiners,  to  apply  any  of 

the  bonds  deposited  by  said  company  as  security,  the  governor 
shall  cause  a  copy  of  such  report  to  be  delivered  to  the  presi- 
dent, or  some  other  officer  of  said  company,  and  the  company, 
shall  have  ten  days  from  the  receipt  of  such  copy  within  which 
to  file  objections  to  said  report  with  the  governor;  and,  upon 
such  objections  being  tiled,  the  governor  and  the  company  shall 
appoint  two  men  each,  and  these  four  shall  appoint  a  fifth  man, 
all  of  said  men  to  l>e  railroad  experts,  and  none  of  them  con- 


342  ACT    LEASING    WESTERN    <fe    ATLANTIC    BRANCH 

nected  with  said  railroad,  nor  with  any  railroad  interested 
therein,  and  said  five  men,  so  selected  as  aforesaid,  shall  consti- 
Board  of  ^u^e  a  hoard  °^  arbitration,  who  shall  examine  the 
arbitration.  matters  referred  to  in  the  report  and  exceptions,  and 
shall  make  up  an  award,  which  shall  he  final  and  conclusive  in 
the  premises.  And  it  shall  be  the  duty  of  said  lessees,  on  or 
before  the  first  day  of  October  of  each  and  every  year,  to  make 
Official  re-  anc*  ^'e  w^  ^ne  governor  of  this  state  an  official 
condlttoVof  report  of  the  condition  of  said  Western  &  Atlantic 
Railroad  and  all  the  property  connected  therewith, 
which  report  shall  contain  and  set  forth  the  following  facts: 
What  improvements  have  been  made  by  the  lessees,  or  addi- 
tions made  to  the  track,  bridges,  depot  buildings,  or  side  tracks; 
what  rolling  stock  has  been  purchased  by  said  road;  the  amounts 
received  from  passengers  and  freights;  the  expenses  incurred 
in  the  operating  of  said  road;  the  amount  of  freight  carried 
over  said  railroad  and  the  rates  charged  for  the  same;  and  any 
and  all  other  facts  necessary  to  the  furnishing  complete  infor- 
mation of  the  condition  and  operations  of  said  railroad  for  each 
year  during  said  lease. 

The  present  Western  &  Atlantic  Railroad  Company  is  liable  for  con- 
tinuing a  nuisance  after  notice,  though  it  was  originally  placed  there 
by  the  former  company.  93  Ga. ,  561. 

SEC.  8.  Inventory;  lessee  incorporated,  name,  general  pow- 
ers.— Be  It  further  enacted,  That  the  governor  shall  appoint 
inventory  to  ^ve  citizens  of  this  state,  of  high  character,  two  of 
preTenViease"6  whom  are  experts  in  railroad  management,  who, 
after  making  oath  that  they  are  neither  directly  or 
personally  connected  or  interested  in  the  present  or  future  lease 
of  said  road,  except  as  citizens  of  this  state,  shall  proceed,  sixty 
days  before  the  expiration  of  the  present  lease,  to  examine  the 
road  and  its  houses,  workshops,  depots,  and  rolling  stock,  and 
all  other  appurtenances,  of  every  character,  and  shall  make  out, 
in  writing,  a  schedule  or  inventory  of  the  same,  carefully  de- 
scribing and  setting  forth  the  true  condition  of  the  road  and  its 
rolling  stock  and  appurtenances,  and  property  of  every  character, 
with  the  value  thereof,  which  shall  be  recorded  in  the  office  of 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         343 

the  secretary  of  state,  and  filed  in  the  executive  office,  and  a 
copy  furnished  the  lessees  under  this  act;  and  as  soon  as  the 
terms  of  the  lease  are  agreed  upon  between  the  governor  and 
lessee  or  lessees,  and  the  name  or  names  of  the  company  or 
corporation,  or  parties  leasing  the  road  and  its  appurtenances, 
has  been  entered  on  the  minutes  of  the  executive  department  as 
the  persons  or  corporations  proposing  to  take  said  lease,  and 
the  acceptance  of  the  proposition  by  the  governor  shall  also 
have  been  recorded,  and  a  receipt  given  to  the  state  by  the 
lessees  under  this  act  for  all  the  property  turned  over  to  them, 
the  persons,  associations,  or  corporations  accepted  as  lessees 
under  this  act,  if  not  already  a  corporation  created  under  the 
laws  of  Georgia,  shall,  from  the  time  of  such  acceptance  and 
until  after  the  final  adjustment  of  all  matters  springing  out  of 
this  lease  contract,. become  a  body  politic  and  cor-  Lesseestobe. 
porate  under  the  laws  of  this  state,  under  the  name  ra^body1-"0 
and  style  of  the  Western  &  Atlantic  Railroad  Com-  name' 
pany,  which  body  corporate  shall  be  operated  only  from  the 
time  of  their  taking  possession  of  said  road  as  lessees;  and  it 
shall  have  the  power  to  sue  and  be  sued  on  all  contracts  made 
by  said  company,  in  any  county  through  which  the  road  runs, 
after  the  execution  of  said  lease,  or  for  any  cause  of  action 
which  may  accrue  to  said  company,  and  to  which  it  may  be- 
come liable.  After  said  lease  is  executed,  it  shall  have  power 
to  make  all  rules,  by-laws,  and  regulations  for  the  Ceneral 
government  of  said  company,  and  for  the  working  P°wers- 
and  management  of  said  road,  which  are  necessary  and  usual 
with  railroad  companies  in  this  state,  and  which  are  not  in  con- 
flict with  the  constitution  and  laws  of  this  state  or  the  United 
States.  The  principal  office  and  place  of  business  p,^.,, 
of  said  company  shall  be  in  this  state;  Provided,  offlce- 
That  nothing  in  this  act  shall  l>e  construed  as  an  amendment  of 
the  charter  of  any  corporation  which  may  lease  said  road;  Pro- 
vided further,  That  if  said  lessee  is  a  corporation  already  in- 
corporated under  the  laws  of  Georgia,  it  shall  oj>erate  said  rail- 
road as  the  "Western  &  Atlantic  Railroad,"  and  Corportte 
such  lessee  may  l>e  sued  on  any  contract  or  cause  of  "me>  whcn- 


344:  ACT    LEASING    WESTERN    &    ATLANTIC    BRANCH 

action  arising  out  of  said  lease  for  the  operation  of  said  road, 
in  any  county  through  which  said  road  runs. 

1.  Incorporation. — The  Nashville,  Chattanooga  &  St.  Louis  Railway, 
under  the  above  section,  became  incorporated  as  to  the  line  of  this  road 
in  Georgia  under  the  name  and  style  of  the  "Western  &  Atlantic  Rail- 
road Company."     Under  that  name  it  must  now  be  sued,  or  a  nonsuit 
will  be  entered.     91  Ga.,  24. 

2.  An  act  incorporating  a  company  is  a  public  law,  and  need  not  be 
given  in  evidence.     74  Ga.,  509. 

SEC.  9.  Freight  and  passenger  tariffs,  lessee  to  be  held 

harmless  against  bonds  On  road.— Be  it  further  enacted,  That 
said  lease  company  shall  be  subject  to,  and  required  to  observe 
and  obey,  all  just  and  reasonable  rules,  orders,  schedules  of 
freight  and  passenger  tariffs  as  may  be  prescribed  by  the  laws 
of  this  state  and  the  railroad  commission  of  this  state;  and  said 
lease  company  shall  charge  no  greater  rate  per  ton  per  mile  on 
through  freight  on  said  railroad  than  the  local  rate  allowed  and 
fixed  on  similar  freights  by  the  railroad  commission  for  said 
railroad;  and  said  company  shall  not  discriminate  against  any 
railroad  company  or  persons,  or  parties  or  places  having  busi- 
ness connections  or  relations  with  said  Western  &  Atlantic 
Railroad,  but  all  schedules  of  freight  and  passenger  tariffs  shall 
be  so  arranged  as  to  give  all  connecting  roads  and  all  places 
and  persons  having  business  relations  with  said  road  a  fair  and 
equal  chance,  doing  equal  justice  between  them  in  everything 
connected  with  the  management  of  said  road;  and  that  said 
lease  company  shall  have  the  exemptions,  privileges,  immuni- 
ties, rights,  and  guarantees,  and  shall  be  subject  to  the  same 
laws,  liabilities,  disabilities,  and  public  burdens  on  other  rail- 
road companies  in  this  state,  and  no  more,  in  all  cases  where 
this  act  is  silent  and  has  made  no  provision  on  this  subject. 
And  it  Is  further  enacted,  That  the  state  pledges  her  faith  to 
redeem  all  bonds  on  said  road  which  have  been 
issued  by  the  state — and  now  recognized  by  the 
state — and  on  which  interest  is  now  being  paid,  together  with 
all  interest  coupons  as  they  fall  due,  and  to  save  the  lessees 
harmless  against  said  bonds  and  coupons. 

SEC.  10.  Existing  contract ;  how  road  and  rolling  stock  to 
be  received  and  accounted  for;  forfeiture  of  \tast.— Beit  fur- 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUI8    HAILWAY.         345 

eiutcted,  That  the  said  lease  shall  in  no  way  interfere  with 
the  contract  now  existing  tatween  the  state  and  the  ExlstlB| 
present  lessees;  and  the  lessees,  under  this  act,  shall  contract- 
receive  the  roadbed  in  its  condition  at  the  time  the  lease  con- 
tract is  made,  ordinary  and  natural  wear  and  tear,  until  the  ex- 
piration of  the  present  lease,  excepted;  and  the  governor  shall 
appoint  three  expert  railroad  men,  not  connected  with  the  lease 
company  or  any  corporation  having  shares  therein,  whose  duty 
it  shall  he  to  examine  the  roadbed  and  its  appurtenances  within 
ten  days  prior  to  the  oj>ening  of  the  bids,  and  make  a  full  and 
complete  report  of  the  condition  of  the  same  to  the  Reports  as  to 
governor,  to  be  tiled  in  the  office  of  the  secretary  road, 
of  state,  which  report  shall  be  taken  as  the  true  condition  of 

the  road  at  that  time.      In  the  event  the  road  is  re-  in  event  road 

is  readver- 
advertised  for  lease,  a  like  examination  and  report  tised. 

shall  l>e  made  prior  to  the  opening  of  the  bids,  together  with 
that  part  of  the  personalty  received  by  the  lessees,  except  old 
iron,  not  in  use,  wood  and  cross-ties,  and  material  in  car  shops 
and  machine  shops,  and  which  is  shown  by  the  inventory  of  file 
in  the  secretary  of  state's  office,  taken  under  the  lease  act  of 
1870,  and  supplementary  inventory  of  1872,  subject  to  the 
right  of  the  present  lessees,  at  option,  to  deliver  the  pro|>erty 
therein  specified,  if  in  as  good  condition  as  when  received,  or 
property  of  like  kind  and  character,  in  a  like  condition,  or  of 
increased  capacity,  or,  upon  failure  to  do  so,  then  to  account 
for  the  full  value  of  the  same  in  money.  The  money  so  re- 
ceived shall  be  reinvested  in  engines  or  cars  by  said  lessees, 
acting  with  the  concurrence  of  a  competent  and  disinter- 
ested railroad  expert,  to  be  appointed  by  the  governor. 
Said  property  so  purchased  shall  belong  to  the  state,  subject 
to  the  provisions  of  the  lease,  and  an  inventory  of  the  same, 
signed  by  the  lessees  and  the  said  railroad  expert,  shall  be  filed 
with  the  secretary  of  state;  Provided,  That  the  state 
shall  not  be  bound,  nor  the  rights  of  the  state  limited, 
by  any  statements  or  conclusions  made  in  said  report  of  said 
arbitration,  of  date  December  19,  1872.  In  case  the  lessee  or 
lessees  under  this  act  shall  fail  or  refuse  to  pay  whatever  sum 


346  ACT    LEASING    WESTEKN    &    ATLANTIC    BRANCH 

Damages  for  may  ^e  agreed  upon,  according  to  the  provisions 
Monthly0  Wy  °f  this  act>  as  a  monthly  rental  into  the  treasury 
of  the  state,  within  twenty  days  after  the  end  of 
the  month,  the  lessee  or  lessees  shall  forfeit  to  the  state  six 
months'  rental  as  damages,  to  be  collected  out  of  the  bonds  de- 
posited under  this  act.  For  failing  or  refusing  to  comply  with 
Forfeiture  sa^  lease  contract,  the  governor,  at  his  option,  may 
of  lease.  declare  the  lease  forfeited,  and  take  immediate  pos- 

session of  said  road  and  its  appurtenances;  and  if  any  resistance 
is  offered  by  the  lessee  or  lessees,  it  shall  be  the  duty  of  the 
sheriffs  of  all  the  counties  in  this  state  through  which  said  rail- 
road runs  to  aid  the  governor  with  the  posse  comitatus  of  their 
respective  counties,  to  take  the  possession  and  expel  the  lessee 
or  lessees  who  have  failed  or  refused  to  make  payments  when 
due,  as  aforesaid;  and  in  ten  days  after  he  has  terminated  the 
lease  and  taken  possession  of  the  road  for  the  state,  the  gov- 
ernor shall  apply  the  remaining  bonds  deposited  as  damages  on 
account  of  the  forfeiture  as  far  as  the  same  may  go. 

The  rolling  stock  and  personal  property  received  was  itemized  and  re- 
ceipted for  in  full.  The  list  is  herein  to  be  found  in  the  next  chapter. 

SEC.  11.  Taxes,  subletting  prohibited,  exception,  improve- 
ments belong  to  State. — Be  it  farther  enacted,  That  said  lessee 
or  lessees  shall  be  required  to  pay  all  taxes  and  assessments 

upon  the  property  of  this  state  in  the  State  of  Ten- 
Taxes.  ,  .     „ 

nessee,  and  in  (jreorgia  upon  all  property  owned  or 

controlled  by  them,  not  received  from  the  state,  and  such  fur- 
ther taxes  upon  their  income  as  is  now  paid  by  the  Central 
Railroad  &  Banking  Company,  and  shall  not  sublet  said"  road, 
or  any  part  thereof,  to  any  other  company,  corporation,  or 
party,  provided  the  lessees  may  sublet  any  property  not  needed 
Proviso  as  to  ^O1  ra^roa(^  purposes;  Provided,  That,  in  the  opin- 
subiettmg.  jon  of  ^ne  attorney-general,  this  can  be  done  with- 
out invalidating  the  state's  title  thereto;  and  all  improvements 
put  on  said  property  by  the  lessees  or  their  tenants,  shall  be- 
long to  the  state  at  the  expiration  of  said  lease. 

1.  Subletting  prohibited;  may  mortgage,  when. — The  above  section, 
prohibiting  subletting  in  no  manner  prevents  the  mortgage  or  assign- 
ment of  the  entire  leasehold  interest.  It  is  frequently  important  to  de- 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          347 

trrmine  whether  au  act  of  the  lessee  is,  in  law,  an  assignment  or  a  sub- 
leasing.  It  is  uniformly  held  that  if  the  entire  leasehold  interest  is  alien- 
ated, it  is  an  amiiyinnent.  If  it  is  for  a  period  which  is  to  expire  before 
the  expiration  of  the  original  lease,  it  is  a  subleasing.  Hurton  on  Real 
Property,  sec.  889;  J  Wash,  on  Heal  Property,  sec.  510;  108  Mass.,  558. 
See,  also,  53  I'enn.  St.,  20(1806):  47  Minn..  lf*9;  102  X.  Y.,  008. 

A  mortgage  or  assignment  of  the  entire  leasehold  interest  is  in  no  man- 
ner a  violation  of  a  covenant  not  to  sublet.  The  authorities  are  clear 
upon  this  subject.  27  Barb.  (N.  Y.).  415;  25  X.  J.  L.  (1  Dutch.),  2U1,  285; 
33  N.  J.  D.  (4  Vr.),  254;  47  Minn.,  189;  15  L.  II.  A.,  230;  10  .Johns.,  159;  1 
Wood  on  Landlord  and  Tenant,  sees.  258,  327;  Taylor  on  Landlord  and 
Tenant,  sec.  16;  129  111.,  318-327.  See,  also,  14  Lea(Tenn.),  92;  9  Lea,  1. 

Hence,  there  was  nothing  in  the  above  section  to  prevent  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  from  mortgaging  its  entire  lease- 
hold interest  in  this  road,  which  it  did.  together  with  the  $500.000  of 
bonds  deposited  with  the  treasurer  of  Georgia,  to  secure  an  issue  of 
$050,000  of  bonds  known  as  the  •'  Western  «t  Atlantic  Railroad  Income 
Honds. "  Said  bonds  were  issued  by  the  Nashville.  Chattanooga  &  St. 
Louis  Railway  to  reimburse  itself  for  moneys  expended  by  it  in  repair- 
ing and  renewing  the  bridges,  trestles,  tracks,  etc.,  of  said  Western  «fc 
Atlantic  Railroad. 

2.  Taxes,  how  paid. — The  above  section  also  provides  that  the  com- 
pany shall  pay  "such  further  taxes  upon  its  Income  as  is  now  paid  by 
the  Central  Railroad  «fc  Hanking  Company."  The  latter  company  was 
incorporated  by  Acts  (Ja.,  1833.  The  seventh  section  of  its  charter  pro- 
vided that  it  should  pay  one-half  of  one  per  cent,  on  its  net  Income. 

SEC.  1-2.  Rent,  how  paid;  shops  to  remain  in  state;  prin- 
cipal Office. —  lie  it  further  enacted,  That  all  payments  required 
to  l>e  made  under  said  lease  shall  be  made  in  gold,  or  its  equiva- 
lent. The  railroad  shops  of  the  Western  &  Atlantic  Railroad 
shall  not  be  removed  beyond  the  state  of  Georgia,  and  the  prin- 
cipal office  of  the  Western  &  Atlantic  Railroad  shall  be  within 
the  limits  of  the  State  of  Georgia. 

SEC.  is.  Governor  to  operate  road,  when.— /^  it  further 

enacted,  That,  in  the  event  of  a  failure  to  lease  the  Western 
&  Atlantic  Railroad,  or  in  the  event  of  a  forfeiture  of  the  lease 
at  any  time,  the  governor  shall  operate  said  road  under  the 
provisions  of  the  laws  of  this  state  until  a  lease  can  be  made 
under  this  or  any  subsequent  act  of  the  legislature. 

SEC.  U.  Conflicting  laws  repealed.—  Be  it  further  enacted, 
That  all  laws  and  parts  of  laws  in  conflict  with  this  act  be,  and 
the  same  are  hereby,  repealed.  (Acts  Ga.,  1S80,  p.  362;  ap- 
proved November  12,  1889.) 


348  LEASE    CONTRACT    WESTERN    <fe    ATLANTIC    BRANCH 


CHAFfER   XXXI. 

LEASE  CONTRACT,  LIST  OF  ROLLING   STOCK,  ETC.,  RECEIVED, 

AND  ACTS  GEORGIA  AND   TENNESSEE  RELATING  TO 

WESTERN  &  ATLANTIC  RAILROAD. 

LEASE   CONTRACT. 

STATE  or  GEORGIA,  ) 
Co Ktrty  of  Fulton,    f 

WHEREAS,  The  undersigned,  John  B.  Gordon,  the  governor 
of  said  state,  did,  in  strict  compliance  with  the  act  of  the  gen- 
eral assembly  of  said  state,  entitled  "An  act  to  provide  for  the 
lease  of  the  Western  &  Atlantic  Railroad,  to  define  the  rights, 
powers,  liability,  and  duty  of  the  lessee,  and  for  other  pur- 
poses therewith  connected,"  which  act  was  approved  November 
12,  1889,  made  an  advertisement,  which  was  a  definite  proposal 
for  bids,  as  authorized  by  said  act,  for  the  lease  of  the  said  the 
Western  &  Atlantic  Railroad,  together  with  all  its  houses, 
workshops,  rolling  stock,  depots,  and  appurtenances  of  every 
kind  and  character,  being  the  property  of  said  state,  and  which 
said  act  authorizes  the  governor  of  said  state  to  lease  as  therein 
provided,  said  bids  to  be  submitted  in  writing  to  said  governor 
on  or  before  the  twenty-seventh  (27th)  day  of  June,  eighteen 
hundred  and  ninety  (1890);  and, 

WHEREAS,  On  or  before  said  last  named  date  two  bids  only 
were  so  submitted,  one  of  which  was  by  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  a  corporation  created  by  the  laws 
of  the  State  of  Tennessee,  but  not  a  corporation  created  by  the 
laws  of  the  State  of  Georgia,  proposing  and  offering  to  lease 
the  said  Western  &  Atlantic  Railroad  and  the  other  property 
hereinbefore  mentioned,  under  and  in  accordance  with  the  pro- 
visions of  the  said  act,  approved,  as  aforesaid,  on  the  twelfth 
(12th)  day  of  November,  eighteen  hundred  and  eighty-nine 
(1889),  for  a  term  of  twenty-nine  (29)  years,  and  to  pay  there- 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         349 

for  the  sum  of  thirty-five  thousand  and  one  dollars  ($35,001) 
each  month  during  said  term,  as  required  by  said  act;  and, 

\VIIEKKAS,  After  the  said  governor  had  given  due  notice  of 
the  time  and  place  of  the  opening  and  examination  of  the  bids, 
in  strict  conformity  to  the  requirements  of  said  act,  the  gov- 
ernor, comptroller-general,  secretary  of  state,  treasurer,  and 
attorney  -general  of  said  state  opened  and  examined  said  bids, 
at  the  time  and  place  so  designated,  in  the  presence  of  the  pub- 
lic and  the  bidders,  or  their  legal  representatives,  to  wit,  at 
eleven  (11)  o'clock  in  the  forenoon  of  the  twenty -eighth  (28th) 
day  of  June,  eighteen  hundred  and  ninety  (1890),  at  the  cap- 
itol,  in  the  city  of  Atlanta,  Georgia,  and  then  adjourned  over 
until  the  following  Monday,  to  wit,  until  the  thirtieth  (30th) 
day  of  June,  eighteen  hundred  and  ninety  (1890),  at  four  (4) 
o'clock  in  the  afternoon,  and  then  assembled  again,  and  then 
and  there,  at  the  said  capitol  of  the  State  of  Georgia,  at  4 
o'clock  in  the  afternoon  on  the  said  thirtieth  (30th)  day  of 
June,  eighteen  hundred  and  ninety  (1890),  did  formally,  and 
in  writing,  accept  the  said  bid  of  the  said  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway,  which  written  acceptance  was, 
on  the  same  day,  ordered  by  the  governor  to  l>e  entered  on  the 
the  minutes  of  the  executive  department,  together  with  both 
of  the  bids  submitted  as  aforesaid,  and  the  papers  accompany- 
ing said  bids,  and  was,  together  with  accompanying  paj)ers  as 
aforesaid,  entered  on  the  minutes  in  said  department  in  pursu- 
ance of  said  order;  and, 

WHEREAS,  Prior  to  the  opening  of  said  bids,  the  governor 
appointed  three  expert  railroad  men,  to  wit,  Eben  Hillyer,  W. 
L.  Clark,  and  .John  Screven,  not  connected  with  the  lease  com- 
pany l>etween  which  and  the  said  State  of  Georgia  a  lease  of 
said  railroad  and  the  other  property  connected  therewith  now 
exists,  or  with  any  corporation  having  shares  in  said  lease,  who 
did,  within  ten  days  prior  to  the  opening  of  said  bids,  examine 
the  roadbed  of  the  said  the  Western  &  Atlantic  Railroad  and 
its  appurtenances,  and  made  a  full  and  complete  report  of  the 
condition  of  the  same  to  the  governor,  as  required  by  the  first 
clause  or  sentence  of  the  tenth  section  of  said  act,  which  report 


350  LEASE    CONTRACT    WESTERN    &    ATLANTIC    BRANCH 

was  filed,  in  accordance  with  said  section,  in  the  office  of  the 
secretary  of  the  state,  on  the  twenty-sixth  (26th)  day  of  June, 
eighteen  hundred  and  ninety  (1890),  and  is  taken  by  the  parties 
hereto  as  showing  the  true  condition  of  said  railroad  and  the 
appurtenances  thereof,  which  are  mentioned  and  the  condition 
of  which  is  stated  in  said  report,  at  the  time  the  said  report 
was  filed  as  aforesaid: 

Now,  this  indenture,  made  and  entered  into  on  this  the  nine- 
teenth (19th)  day  of  July,  eighteen  hundred  and  ninety  (1890), 
between  the  said  John  B.  Gordon,  governor  of  the  said  State 
of  Georgia,  and  for  and  in  behalf  of  said  state,  as  party  of  the 
first  part,  and  the  said  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  a  corporation  as  aforesaid,  as  party  of  the  second 
part,  witnesseth:  That  the  said  party  of  the  first  part,  under 
and  by  authority  of  the  said  act,  approved  November  twelfth 
(12th)  eighteen  hundred  and  eighty-nine  (1889),  and  in  pur- 
suance thereof,  in  consideration  of  the  premises,  and  especially 
of  the  agreement  of  the  party  of  the  second  part  to  pay  into 
the  treasury  of  the  said  state,  in  the  city  of  Atlanta,  Georgia, 
the  sum  of  thirty -five  thousand  and  one  dollars  ($35,001) 
monthly,  as  required  by  said  act,  and  of  the  deposit  with  the 
treasurer  of  said  state  recognized  valid  bonds  of  the  State  of 
Georgia  of  the  par  value  of  five  hundred  thousand  dollars 
($500,000),  as  required  by  said  act,  and  particularly  by  the 
fourth  and  fifth  sections  thereof,  as  well  as  in  consideration  of 
all  the  other  obligations  and  duties  to  be  performed  under  the 
provisions  of  said  act  by  the  said  party  of  the  second  part,  does 
hereby  lease  to  the  said  party  of  the  second  part,  viz.,  to  the 
Nashville,  Chattanooga  &  St.  Louis  Railway,  the  said  the 
Western  &  Atlantic  Railroad  (a  railroad  running  from  the  city 
of  Atlanta,  in  the  State  of  Georgia,  to  the  city  of  Chattanooga, 
in  the  State  of  Tennessee),  together  with  all  its  houses,  work- 
shops, rolling  stock,  depots  and  appurtenances  of  every  kind 
and  character,  being  the  property  of  the  State  of  Georgia,  and 
which  the  said  act  authorizes  the  governor  of  said  state  to  lease 
under  the  provisions  thereof,  for  a  term  of  twenty-nine  (29) 
years,  beginning  from  and  immediately  after  the  termination 


NASHVILLE,    CHATTANOCMJA    &    8T.     LOUIS    RAILWAY.          351 

of  the  lease  contract  now  existing  (which  was  executed  on  the 
twenty-seventh  (27th)  day  of  December,  eighteen  hundred  and 
seventy  (1870),  and  ends  twenty  (20)  years  from  that  date.) 
Said  lease  is  made  to  said  party  of  the  second  part  with  all  the 
rights,  powers,  and  privileges  conferred  on  said  lessees  by  said 
act,  approved  Noveml>er  twelfth  (12th)  eighteen  hundred  and 
eighty-nine  (1889),  and  subject  to  all  the  requirements,  obliga- 
tions, and  duties  thereby  exacted  of  said  lessee,  and  which  the 
said  party  of  the  second  part  hereby  agrees  faithfully  to  [>erforni 
in  accordance  with  the  provisions  of  said  act;  the  said  party  of 
the  second  part  also  specially  agrees  to  pay  into  the  treasury  of 
the  said  State  of  Georgia,  each  month  during  the  continuance 
of  said  lease,  the  sum  of  thirty-live  thousand  and  one  dollars 
($35,001)  in  gold,  or  its  equivalent,  as  required  by  said  act. 

It  is  further  stipulated  and  agreed  by  the  parties  hereto,  that 
this  lease  is  made  by  the -said  party  of  the  tirst  part,  and  ac- 
cepted by  the  said  party  of  the  second  part,  under  and  sub- 
ject to  all  the  provisions  of  the  said  act  of  the  general  assembly, 
approved,  as  aforesaid,  on  the  twelfth  (12th)  day  of  November, 
eighteen  hundred  and  eighty-nine  (1880),  and  that  both  of  the 
parties  hereto,  and  all  persons  or  corporations  who  are,  or  shall 
be,  their  lawful  successors  by  virtue  of  said  act,  are,  and  shall 
be,  bound  in  every  particular  by  the  provisions  of  said  act,  and 
that  if  said  act  conflicts  in  any  resjract  with  this  contract,  said 
act  is  to  govern  and  control. 

In  witness  whereof x  the  said  .John  H.  Gordon,  governor  of 
the  State  of  Georgia,  has  hereunto  attached  his  official  signa- 
ture and  the  great  seal  of  said  state;  and  the  said  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  has,  by  its  president,  .John 
W.  Thomas  (who  is  authorized  by  said  corporation  so  to  do), 
signed  and  executed  this  contract  and  attached  the  corporate 
seal  of  said  corporation,  on  the  said  nineteenth  (19th >  day  of 
July,  A.I),  eighteen  hundred  and  ninety  (1890). 

Executed  in  duplicate  in  presence  of 

PHILIP  COOK,  JOHN  B.  GORDON, 

Secretary  of  State.  Governor. 

THE  NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 
J.  H.  AMBROSE,  Secretary.  By  J.  \V.  THOMAS, 


352 


ROLLING    STOCK    LEASED    WITH    W.    &    A.     BRANCH 


LIST  OF  ROLLING  STOCK  AND  OTHER  PERSONAL  PROPERTY 

ACTUALLY  RECEIVED  FROM  STATE  OF  GEORGIA 

BY  NASHVILLE,  CHATTANOOGA  &  ST. 

LOUIS  RAILWAY. 

List  of  passenger,  baggage,  and  postal  cars  received  from  the  State  of  Georgia 
by  the  Nashville,  Chattanooga  &  St.  Louis  Railway  (lessee). 


NUMBER. 

PASSENGER  CARS. 

VALUE 
BY  STATE. 

VALUE 

BT  LESSEE. 

1  

Built  by  W.  &  A.  R.  R.  Co.  Sept.    1858 

$  1,600 

8  1,500 

o 

Rebuilt                •'                  June,  1888 

3.000 

2,500 

4        

"                      "                  June.  1888 

3.000 

2,500 

7          

"                      '•                  July,   1879 

1,650 

1,500 

9 

Built                      "                   Nov.     1880 

1,750 

1,500 

10 

Rebuilt                                    Nov.     1888 

3.100 

2,500 

11    

"                '  Mar.     1876 

1,450 

1,200 

15 

"                      "                  Mar.    1881 

1.750 

1,500 

16       ...    -- 

Nov.    1874 

1,450 

1,200 

18       .    -    .    . 

"                                          Dec.     1888 

3,150 

2,500 

19 

"                      "                  Dec*.     1888 

3.150 

2,500 

21    .- 

Built  bv  Jackson  &  Sharp,  Sept.    1  880 

2,000 

1,700 

22           

Sept.    1880 

2,000 

1,700 

23              

W.  &  A.  R.  R.  Co.  Oct.      1880 

•2,000 

1.700 

24 

"                                              Oct.      1880' 

2,000 

1,700 

25 

Bought  by  W.  &  A.  R.  R.  (2dh'd)Sep.  1  881 

950 

'    750 

27            

Built  by  Ohio  Falls  Co.       May,    1884 

3,000 

2.500 

28          

"                       May,    1884 

3,000 

2,500 

29              

"                      "                        May,    1884 

3.000 

2,500 

Car  Atlanta 

3,600 

3,000 

1 

BAGGAGE  CARS. 
Rebuilt  by  W.&A.R.R.Co.  Oct.      1878 

1,200 

1  000 

o 

"                         "                 Nov.     1878 

1.200 

1,000 

3 

"                Sept    1889 

2  250 

2  500 

4   

Built                         "                 Nov.     1889 

2.250 

2,500 

5            -        - 

Sept.    1881 

1,750 

1  250 

6 

"                            li                 Sept.    1881 

1  750 

1  250 

May,    1885 

2  050 

1  500 

6 

COMBINATION  CARS. 
Rebuilt  by  W.  A  A.  R  R  Co  June    1885 

2  150 

1  750 

12      

May.    1881 

1,300 

1  000 

14        .      

"                        "                Apr.     1881 

1  300 

1  000 

NAME. 

(rate  City  .  . 
B.M.Turner 

POSTAL  CARS. 

Rebuilt  by  W.&A.R.R.Co.  Aug-.    1879 
Aug.    1879 

1,400 
1,400 

750 
750 

Total  .. 

$66,600 

855  200 

NASHVILLE,    CHATTANOOGA    A    8T.     LOUIS    RAILWAY.         353 


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354  ROLLING    STOCK    LEASED    WITH    W.    &    A.     BRANCH 

List  of  the  456  Box  Cars  received  from  the  State  of  Georgia  by  the  Nashville, 
Chattanooga  <5z  St.  Louis  Railway  (Lessee),  December  27,  1890. 

NUMBER. 


11 

2228 

2662 

3424 

3494 

3661 

12630 

12916 

12 

2230 

2663 

3425 

3495 

3662 

12631 

12917 

15 

2231 

2664 

3426 

3496 

3663 

12633 

12918 

23 

2232 

2665 

3427 

3498 

3664 

12634 

12919 

51 

2233 

2666 

3428 

3499 

3665 

12636 

12920 

54 

2234 

2667 

3429 

3600 

3667 

12637 

12921 

74 

2236 

2668 

3430 

3602 

3668 

12638 

12923 

85 

2238 

2669 

3431 

3603 

3669 

12639 

12924 

87 

2242 

2671 

3432 

3604 

3670 

12640 

12925 

109 

2243 

2672 

3433 

3605 

3671 

12641 

12926 

145 

2244 

2673 

3434 

3606 

3672 

12642 

12927 

185 

2245 

2674 

3435 

3607 

3674 

12643 

12928 

215 

2246 

2675 

3436 

3608 

3675 

12645 

12929 

216 

2247 

2676 

3438 

3609 

3676 

12647 

12930 

228 

2248 

2677 

3439 

3610 

3678 

12869 

12931 

251 

2249 

2678 

3440 

3611 

3679 

12870 

12932 

269 

2250 

2679 

3441 

3612 

3680 

12871 

12933 

272 

2253 

2680 

3442 

3613 

3682 

12872 

12934 

291 

2254 

2681 

3443 

3614 

3683 

12873 

12935 

295 

2256 

2682 

3444 

3615 

3685 

12874 

12936 

297 

2257 

2683 

3445 

3616 

3686 

12875 

12937 

300 

2259 

2684 

3448 

3618 

3688 

12876 

12938 

331 

2260 

2685 

3450 

3619 

3690 

12877 

12939 

337 

2261 

2686 

3451 

3620 

3691 

12878 

12940 

338 

2262 

2687 

3452 

3622 

3692 

12879 

12941 

343 

2265 

2688 

3453 

3624 

3693 

12880 

12942 

390 

2267 

2689 

3455 

3626 

3694 

12881 

12943 

396 

2268 

2690 

3456 

3627 

3685 

12882 

12944 

401 

2269 

2691 

3457 

3628 

3699 

12883 

12945 

418 

2270 

2693 

3458 

3629 

12600 

12884 

12946 

4-34 

2272 

2694 

3459 

3630 

12601 

12885 

12947 

428 

2275 

2695 

3460 

3631 

12602 

12887 

12948 

439 

2278 

2696 

3461 

3632 

12603 

12888 

12949 

453 

2279 

2697 

3462 

3634 

12604 

12889 

12951 

464 

2281 

2698 

3463 

3635 

12605 

12890 

12952 

471 

2283 

2699 

3466 

3636 

12606 

12891 

12953 

473 

2284 

3400 

3467 

3637 

12607 

12892 

12954 

484 

2285 

3401 

3468 

3638 

12608 

12893 

12955 

492 

2288 

3402 

3470 

3639 

12609 

12894 

12956 

506 

2289 

3403 

3471 

3640 

12610 

12895 

12957 

515 

2292 

3404 

3472 

3641 

12611 

1  2896 

12959 

535 

2294 

3405 

3473 

3642 

12612 

12897 

12960 

561 

2295 

3406 

3474 

3643 

12613 

12898 

12961 

566 

2296 

3407 

3475 

3644 

12614 

12900 

12962 

2200 

2297 

3408 

3476 

3645 

12616 

12901 

12963 

2202 

2299 

3409 

3477 

3646 

12617 

1  2902 

12964 

2205 

2650 

3411 

3478 

3647 

12618 

12903 

12965 

2206 

2652 

3412 

3479 

3648 

12619 

12904 

12968 

2211 

2653 

3414 

3480 

3649 

12620 

1  2905 

12969 

2213 

2654 

3415 

3481 

3651 

12622 

12906 

12970 

2216 

2655 

3417 

3482 

3653 

12623 

12907 

12971 

2219 

2656 

3418 

3484 

3654 

12624 

12908 

12972 

oooo 

2657 

3419 

3486 

3656 

12625 

12909 

12973 

2224 

2658 

3420 

3487 

3657 

12626 

12910 

12974 

2225 

2659 

3421 

3488 

3658 

12627 

12911 

12976 

2226 

2660 

3422 

3491 

3659 

12628 

12912 

12977 

2227 

2661 

3423 

3492 

3660 

1  2629 

12913 

NASHVILLE,    CHATTANOCKM    A    ST.    LOUIS    RAILWAY.         355 


List  of  1  2  0  Coal  and  100  Flat  Cars  received  from  the  State  of  Georgia  by 
the  Nashville,  Chattanooga  if  St.  Louis  Railway  (Lessee). 


Nl'MBEK. 


1404 
1405 
1409 

141:.' 

1415 
1419 
1420 
14-"J 
1436 
1432 
1435 
1437 
1443 
1444 
1448 
1449 
145-,' 
1453 
1456 
1462 
1463 
1464 
1466 
1468 
1471 
1472 
1473 
1474 
1475 
1477 
1480 
1482 
1483 
1484 
14S8 
1489 
1490 


1491 
1495 
1496 
1498 
1499 
1503 
1505 
1508 
1511 
1513 
1515 
1517 
1519 
1521 
1522 
1523 
1524 
1530 
15,39 
1540 
1541 
1542 
1543 
1547 
1548 
1550 
1552 
1553 
1556 
1557 
1559 
1561 
1563 
1567 
1573 
1577 
l.r,7'.t 


1580 
1581 
1584 
1585 
1587 
1589 
1592 
1598 
1599 
1601 
1606 
16C8 
1611 
1616 
1619 
1622 
1623 
1627 
1630 
1634 
1636 
1638 
1640 
1642 
1647 
1653 
1657 
1665 
1670 
1672 
1674 
1677 
1678 
1681 
1682 
1684 
1685 


1688 
1689 
1690 
1695 
1606 
1697 
1698 
1703 
1707 
1710 
1711 
1713 
1714 
1715 
1718 
1719 
1720 
1721 
1722 
1724 
1726 
1729 
1730 
1731 
1732 
1733 
1734 
1736 
1737 
1738 
1739 
1740 
1741 
1742 
1744 
1745 
1746 


1747 
1748 
1749 
1750 
1751 
1754 
:,7 
M 
80 
51 
65 
1766 
1767 
1769 
1771 
1773 
1776 
1777 
1778 
1779 
1783 
1784 
1786 
1788 
1789 
1800 
1801 
1802 
1803 
1807 
1808 
1810 
1811 
1813 
1816 
1817 


1819 
1820 
1821 
1823 
1828 
1830 
1832 
1833 
1835 
1837 
1838 
1839 
1844 
1846 
1849 
1853 
1854 
1855 
1857 
1858 
1860 
1863 
1865 
1870 
1871 
1877 
:87» 
1885 
1887 
1888 
1889 
1890 
1893 
1897 
1905 
1924 


List  of  1  5  Stock  Cars  received  from  the  State  of  Georgia  by  the  Nashville. 
Chattanooga  &  St.  Louis  Railway  (Lessee). 


NUMBEK. 


1330 
1331 


1332 
1338 


1339 
1342 


1301  1315  1320 

1304  1316  1327 

1307  1319  1328 

One  Wrecking  Car. 

List  of  Machine  Shop  Tools  to  be  Delivered  to  the  State  by  the  Lessees. 

No.  2.  1  single  head  driving  wheel  lathe. 

3.  1  axle  lathe.  33-inch  swing,  13-foot  bed,  back  gear,  with  tools. 

4.  1  engine  lathe,  20-inch  swing,  14-foot  bed,  back  gear,  with  tools. 

5.  1  engine  lathe,  20-inch  swing,  8%-foot  bed,  back  gear,  with  tools. 

6.  1  engine  lathe,  20-inch  swing,  8%-foot  bed,  back  gear,  with  tools. 

7.  1  engine  lathe.  16-inch  swing,  7   .  -foot  bed,  back  gear,  with  tools. 

8.  1  engine  lathe,  12-inch  swing,  5-foot  bed.  (Never  used  by  lessees.) 


356  ROLLING    STOCK    LEASED    WITH    W.    &    A.     BRANCH 

No.  1.     1  planer  36  inches  wide,  12  feet  long-,  3  heads,  all  tools;  substi- 
tuted for  No.  I  screw  planing1  machine,  condemned. 

2.  1  compound  planer,  with  chuck,  table,  and  tools. 

3.  1  shaping  machine,  complete,  and  tools. 

4.  1  shaping  machine,  complete,  and  tools. 

1  boring  mill. 

1  boring  mill,  with  endless  chain  twist. 

1  grindstone,  shaft  and  pulley,  complete. 
1  endless  chain  twist,  lift  2,500  pounds. 
1  endless  chain  twist,  lift  500  pounds. 
1  pattern  maker's  lathe. 

12  vises,  9  old  and  3  new,  in  place  of  original  9. 
No.  1.     1  drill  press,  complete,  back  gear,  all  tools. 
3.     1  drill  press,  complete,  20-inch. 

Lot  of  reamers,  taps  and  dies,  rose  bits,  counter  sinks,  etc. 

5  hydraiilic  jacks,  2  of  20  tons,  3  of  15  tons  lift. 

1  bolt  cutter,  with  full  set  of  taps  and  dies,  cut  )£  to  1  ^  inches. 

176  feet  cold  rolled  shafting-. 

46  pulleys. 

18  hangers. 

16  coupling's. 

In  Blacksmith  Shop  of  Machine  Department. 

6  Forges,  complete,  with  tools,  etc.  4  Castiron  forms.  7  Anvils.  1 
Vise.  1  Blower.  1  Spring  furnace,  oil  tub,  etc. 

Coppersmith  Tools. 
1  Coppersmith  forge.     1   Set  stocks  and  dies.     1  Bench  vise,  6-inch 

jaw.     3  Mandrels.     1  Pot. 

Boiler  Shop  Tools. 

1  Boiler  shears.  2  Boiler  punches,  No.  5.  1  Boiler  rolls.  1  Forg-e' 
with  tools.  1  Vise,  8-inch  jaw  (box). 

Paint  Shop. 
1  Paint  grinder. 

Machinery,  etc.,  in  Car  Department. 

1  engine  and  boiler,  40-horse  power,  with  pump.  2  wood  planers.  2 
saw  tables.  6  circular  saws.  1  tenon  machine.  2  pairs  scales.  1  mortise 
machine.  1  gumming  machine.  1  axle  lathe.  1  car-wheel  boring  mill.  1 
slide  lathe.  1  sash  sticker.  1  150-ton  hydraulic  wheel  press,  substituted  for 
old  wheel  press  condemned  and  for  deterioration  of  machinery  (this  press 
costal,  100).  1  grindstone.  1  wood  lathe.  1  jigsaw.  2  15-ton  jacks.  7  screw 
jacks.  1  old  100-ton  hydraulic  wheel  press.  3  stoves.  12  work  benches 
(15  originally).  2  hand  cars.  2  wheelbarrows.  1  drill  press.  Lot  of 
drills,  rose  bits,  bolt  cutters,  taps,  and  hubs.  1  cut-off  saw.  2  patent  pul- 
leys. 1  fan.  1  grindstone,  shaft,  etc.  1  pair  scales.  3  vises.  2  ladders. 
1  stove.  Original  shafting  and  pulleys  (to  which  add  new  shafting, 
hangers,  pulleys,  and  couplings  bought  by  lessees).  1  nut  machine. 
Lot  of  old  taps.  5  anvils  (originally  8).  6  sledges  (originally  10). 


N  \-ll\II.I.K.    CHATTANOOGA    A    KT.     LOflS    RAILWAY.          357 

6  forges  and  tools  complete  for  4  forges.  Full  set  of  turner's  tools.  Lot 
of  assorted  paints  and  paint  brushes.  1  paint  mill.  •>  putty  knives.  1 
old  stove.  1  old  paint  mill. 

List  of  Furniture  in  the  General  Offices  of  the  Western  &  Atlantic  Railroad  at 
Atlanta,  to  be  Delivered  to  the  State. 

22  desks.  14  small  tables.  7  large  tables.  6  pigeon-hole  cases.  4 
wardrobes,  ft  iron  safes.  8  book-racks  and  cases.  1  clock.  7  copying 
presses.  47  chairs.  3  water  coolers.  9  water  buckets.  7  coal  scuttles. 
4  coal  shovels.  2  coal  tongs.  7  waste  baskets.  37  inkstands.  2  call 
bells.  13  hand  stamps.  8  wash  basins.  4  mirrors.  19  spittoons.  8  R. 
K.  maps.  4  high  stools.  '  1  stove.  5  feather  dusters.  3  settees. 

Furniture  in  Office  of  Master  Mechanic,  Atlanta. 

1  foreman's  desk  and  stool.  1  water  cooler.  1  letter  press.  1  small 
wooden  case.  1  large  desk.  1  small  desk.  2  stools.  1  table.  1  cup- 
board. 1  dork.  1  chair.  1  desk  for  master  mechanic.  1  steam  gauge 
tester.  1  coal  scuttle.  3  pokers.  1  wash  basin,  v  frames  for  state- 
ments. 1  broom.  1  duster. 

Last  of  Office   Furniture  at  Stations  on   Western  &  Atlantic   Railroad  to  be 
Delivered  to  the  State. 

Smynui.  —  1  desk,  1  scales,  1  table.  1  truck. 

Marietta. — 2  desks,  ]  local  ticket  case,  1  through  ticket  case,  2  tables, 
12  tables,  1  settee,  1  clock,  1  mirror,  1  iron  safe,  1  scales,  4  trucks. 

Kennexaw.  —  1  desk,  3  chairs,  1  scales,  1  small  ticket  case. 

AckworUi.  —  1  desk,  6  chairs,  1  settee,  1  clock,  1  small  table.  1  small 
ticket  case,  1  platform  scales,  1  truck. 

Alliitwnut.—l  desk,  2  chairs,  1  small  ticket  case,  2  trucks  (only  one  on 
hand),  1  small  safe  (not  on  hand). 

CnrternvUle. — 1  desk,  5  chairs,  1  table,  1  settee,  1  ticket  case,  1  scales, 
2  trucks. 

StegallH  (now  Einemon). — 4  chairs,  1  desk,  1  truck,  1  scales. 

f.Vw*. — 1  desk,  5  chairs,  1  table.  1  settee,  1  ticket  case,  1  scales,  2  trucks. 

l\'iti>i*t«n. — 2  desks,  2  small  tables,  1  small  safe,  1  local  ticket  case,  6 
chairs,  1  clock,  1  mirror,  1  through  ticket  case,  1  platform  scales,  3 
trucks. 

Adntntvllle.—  1  desk,  1  settee,  1  scales,  2  chairs  (originally  6),  1  clock. 
2  trucks,  1  local  ticket  case. 

fVii/ioMii.  —  1  desk,  1  clock,  6  chairs,  1  settee,  1  table,  1  local  ticket  case, 

1  scales,  2  trucks. 

Remtnt. — 1  desk,  4  chairs,  1  small  ticket  case,  1  scales,  1  truck. 

TUtim.  —  1  desk,  1  ticket  case,  1  scales.  1  truck. 

Ittiltnn. — 2  desks,  1  local  ticket  case,  3  chairs,  1  small  iron  safe,  2 
scales,  6  trucks. 

Tunnel  Hill. — 1  desk  (short),  3  chairs  (originally  0),  1  settee  (short),  1 
table  (short),  1  mirror  (short),  1  local  ticket  case,  1  scales  (originally  2), 

2  trucks. 

ltin(m»M. — 1  desk.  3  chairs  (originally  ft),  1  settee  (short)'.  1  local 
ticket  case,  1  small  table  (short),  2  trucks,  1  scales,  1  clock  (short). 


358  ROLLING    STOCK    LEASED    WITH    W.     &    A.     BRANCH 

GniUHvUle.—l  local  ticket  case,  1  scale,  1  truck. 

('Metatnuutf/u. — 1  desk,  4  chairs,  1  settee  (short). 

CVwittrtnoof/fi.— 7  desks,  1  desk  (warehouse),  1  case  common  shelves,  16 
trucks,  'I  tables,  1  iron  safe,  1  letter  press,  1  baggage  truck,  1  small 
platform  scales.  2  floor  scales,  1  settee  (short),  1  small  ticket  case,  5 
common  chairs  (originally  12),  1  through  ticket  case. 

ATLANTA,  GA.,  March  26,  1891. 

As  the  representative  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  the  present  lessee  of  the  Western  &  Atlantic- 
Railroad,  I  agree  to  take  from  the  State  of  Georgia  the  articles 
described  in  the  inventories  hereto  annexed,  which  articles  are 
ready  to  be  turned  over  by  Joseph  E.  Brown  and  E.  B.  Stahl- 
nian,  receivers  of  the  Western  &  Atlantic  Railroad  Company, 
to  the  State  of  Georgia;  and  I  agree  that  the  valuation  placed 
upon  them  is  correct,  which  valuation  aggregates  $33,093.60. 

[SIGNED.]  J.  W.  THOMAS, 

President  Nashville^  Chattanooga  <&  St.  Louix  Railway. 

MACHINE    SHOP. 

1  double  driving  wheel  lathe $3,000  00 

1  radial  drill  press ... 450  00 

1  driving  wheel  press 900  00 

7  bench  vises,  $5 35  00 

1  14  x  20  40-horse  power  engine 800  00 

4  cast  iron  stoves 20  00 

1  set  spiral  fluted  reamers 30  00 

1  set  twist  drills 5000 

1  set  %  taps 1  50 

1  set   %  taps 250 

1  set  %  taps 3  00 

1  set  %  taps... 4  50 

1  set  1-in.  taps 5  00 

1  set  10-thread  taps. 10  00 

1  wood  level 1  00 

1  iron  level 1  25 

2  40-ton  hydraulic  jacks,  $100..    20000 

2  30-ton  hydraulic  jacks,  $75 1 50  00 

f)  15-ton  hydraulic  jacks,  $50 30000 

1   emery  grinder 30  00 

4  friction  clutch  drills 30  00 

1  cylinder  borer 150  00 

2  steel  straight  edges,  30  in.  long^ 8  00 

2  steel  straight  edges,  16  in.  long   16  00 


Total,  machine  shop $6,197  75 


NA8HVILLK,    CHATTANOOGA    4    ST.    LOUIS    RAILWAY.         359 
BLACKSMITH    SHOP. 

1  steam  hammer,  swedges  and  dies $400  00 

2  crane  hoist,  $15  each 30  00 

1  bolt  header. ..  8  00 


Total,  blacksmith  shop $438  00 

COPPfcRHMITII    SHOP. 

3  pipe  cutters $  8  00 

1  set  pipe  taps 8  00 

1  No.  f>  bench  vise 500 

3  pair  gas  pipe  tongs 3  00 

2  pair  shears 3  00 

1  set  chisels 2  00 

1  pipe  vise 5  00 

4  soldering  irons 2  00 

2  hammers    1  00 

4  monkey  wrenches 2  00 

2  open  end  wrenches 1  50 

2  spanner  wrenches 1  00 


Total,  coppersmith  shop $41  00 

PATTERN    SHOP. 

4  benches  and  screws $2800 

1   universal  shaper 25  00 

1  cross-cut  saw 1  50 

3  open  end  wrenches  . 1  50 

3  box  wrenches 2  00 

3  14-in.  monkey  wrenches,  50c 1  50 

9  12-in.  hand  screws 2  50 

5  16-in.  hand  screws 350 

1  lot  of  patterns 80000 


Total,  pattern  shop  $86500 

FOt'NDKY. 

2  traveling  universal  hoists,  $35 $  70  00 

1  lot  of  wooden  Hosts,  with  clamps,  and  one  lot  of 

iron  Hosts,  with  clamps,  weights,  etc 150  00 

1   wrought  iron  cupalo,  7,000  Ibs.  capacity 100  00 

1  stove •_  4  00 

1  pair  brass  furnaces,  crucibles,  etc. 50  00 

1  blower  . .  30  00 


Total,  foundry $404  00 


360  ROLLING    STOCK    LEASED    WITH    W.    &    A.     BRANCH 

HUMP   BOOM. 

1  12-inch  Worthington  steam  pump $  50  00 

1     4-inch  Worthington  steam  pump. 35  00 

1  McGowan  hand  or  power  pump 25  00 

1  G-jaw  bench  vise . 5  00 

1  set  stocks  and  dies 10  00 

1  pair  chain  tongs 2  50 

2  pairs  universal  tongs. 3  00 

1  monkey  wrench 50 

1  hammer 50 

4  sets  pump  fittings,  McGowan  pump 8  00 

1  stove..  3  50 


Total,  pump  room $143  00 

PAINT    SHOP. 

2  50-gallon  cans. $  2  00 

1  40-gallon  can 3  00 

30  paint  buckets 2  00 

22  paintbrushes 12  00 

1  duster 50 

2  putty  knives 50 

1  pallet  knife 25 

4  varnish  brushes 2  00 

1  marble  slab 50 

5  3-gallon  zinc  buckets 75 

1  paint  press ._ l  50 

3  1-gallon  cans 75 

3  brush  cans 50 

6  step  ladders,  75c 4  50 

1  stove.. 5  00 


Total,  paint  shop $41  25 

CAB  SHOPS. 

1  band  saw  machine $  15000 

1  sand  papering  machine 75  00 

1  Wood  worth  planer  and  matcher 400  00 

1  horizontal  boring  machine 150  00 

1  double  end  axle  lathe 800  00 

1  air  pump  and  piping 50  00 

1  steam  pump  in  engine  room * 60  00 

1  Western  differential  pulley  block. 10  00 

1  portable  forge  ._ 10  00 

4  1 0-ton  hydraulic  jacks 100  00 


Total,  car  shops $1, 805  00 

OFFICE    FURNITURE. 

Atlanta  General  Offices.— 1  iron  safe,  $175;  4  clocks,  $65;  9  stoves,  $35. 
Total,  $275. 


XA8HMI.I.K,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          361 


l><  i>»t.  I  .scale,  81.">;  1  water  bucket  and  clipper,  40c. ;  1  lan- 
tern, 35c.  Total,  815.75. 

Kingnton  7>c/*ot.— 3  settees,  37.50;  5  benches,  $3.25;  1  office  lamp,  $2;  2 
bracket  lamps,  82.50;  1  platform  scale,  $15;  2  baggage  trucks,  830;  2 
water  buckets,  81j'3  lanterns,  81.  Total,  861.75. 

A'luii-xriiii-. — 2  lamps,  82.50;  2  lanterns,  70c. ;  1  ticket  stamp,  84;  1  round 
table,  82;  1  car  seals.  81.50;  2  oil  cans.  Total,  811.20. 

<'<illnnin.  2  trucks.  87;  1  ticket  stamp.  84;  1  car  seals,  81.50;  1  white 
light,  35c. ;  7  chairs,  85.25;  1  red  light  globe,  lOc.  Total,  818.20. 

Re*acn. — 1  table,  82;  1  chair,  75c. ;  1  ticket  case,  82;  1  scales,  815;  1 
truck,  84;  2  lamps,  83;  2  lamps,  70c.;  1  bench,  75c.  Total,  824. 

Tttton. — 1  truck,  84;  1  car  seals,  81.50;  1  lamp,  7">c. ;  2  railroad  lanterns, 
70c.;  1  ticket  stamp,  84.  810.95. 

/>f//(o?u— 3  desks.  818;  1  ticket  case,  825.     Total,  843. 

GraymHlle.  —  1  desk,  84;  3  chairs,  82.25;  1  stool,  81.50;  1  ticket  stamp, 
$4;  1  bucket  and  dipper,  40c;  1  coal  scuttle,  25c.  Total,  812.40. 

Total,  line  of  road,  8476.45. 

BKCAPITUI.ATION. 

Machine  shops 8  6, 197  75 

Blacksmith  shop 438  00 

Coppersmith  shop 41  50 

Pattern  shop  865  00 

Foundry 404  00 

Pump  room 14300 

PaintShop.. 41  25 

Car  shop 1,805  00 

Line  of  road.  476  45 


Total 
Material  and  supplies  as  follows: 


810,412  45 


Car  department 8  8,822  84 

Motive  power  department 4.585  70 

Road  department 4,656  10 

Storehouse  4,616  51 


RECAPITULATION. 


833,093  60 


DESCRIPTION. 

Nl'MBEH. 

VALUE  BY  STATE. 

VAI.I-E  BT  LEH8EE. 

Locomotives          . 

45 

8    161,526  00 

8    109.300  00 

Passenger,     baggage, 
postal  cars        .  .   

32 

6«>,600  OO 

55,200  00 

Box  cars     

455 

91,910  00 

68,250  00 

Coal  cars         ........... 

120 

21,000  00 

15,000  00 

Flat  cars             .       ... 

100 

16,000  00 

10,000  00 

Stock  cars 

1.1 

4.005  00 

2,250  00 

Tools  and  supplies  

33,093  60 

33,093  60 

Total  

8   394.134  60 

8   293,093  60 

362         ACTS    OF    GEORGIA    RELATING    TO    W.    A    A.     BRANCH 

ACTS  GEORGIA  RELATING  TO  WESTERN  & 
ATLANTIC  RAILROAD. 

[There  are  many  acts  of  Georgia  relating  to  the  road,  but  only  those  are  here  inserted  that 
will  be  of  possible  use  to  the  Nashville,  Chattanooga  A  St.  Louis  Railway.] 

1.  Pillars  of  Kennesaw  house,  in  Marietta,  allowed  to  rest  on 

right  of  way,  how. 

SECTION  1.  The  General  Assembly  enact*,  That  from  and 
after  the  passage  of  this  act,  the  superintendent  of  the  Western 
&  Atlantic  Railroad  be,  and  he  is  hereby  empowered,  and 
he  is  hereby  directed,  to  grant  to  the  proprietors  of  the 
Kennesaw  house,  in  the  city  of  Marietta,  the  right  to  rest 
the  pillars  of  the  veranda  to  said  house,  upon  the  west  side 
thereof,  upon  the  east  side  of  the  right  of  way  of  said  Western 
&  Atlantic  Railroad;  Provided,  That  said  pillars  shall  not  oc- 
cupy a  space  of  more  than  three  feet  in  width  of  said  right  of 
way;  And  provided  further,  That  should  the  necessities  of  the 
Western  &  Atlantic  Railroad  require  the  space  of  ground  so 
occupied,  the  same  shall  be  taken  on  the  application  of  the 
superintendent  of  said  road,  notice  thereof  being  given  three 
months  previous,  by  the  superintendent  of  the  road,  to  the  pro- 
prietor or  lessee  of  the  Kennesaw  house. 

SEC.  2.  Repeals  conflicting  laws.  (Acts  Georgia  1870,  p. 
377;  approved  October  25,  1870.) 

2.  Cincinnati  Southern  Railroad  allowed  to  run  on  right  of 

way  of  Western  &  Atlantic,  how. 

SECTION  1.   Be  it  enacted  by  the  General  Assembly  of  Georgia, 

That,  whereas,  the  city  of  Cincinnati  has  nearly  completed  the 

Cincinnati  Southern  Railroad,  a  grand  trunk  line 

which  will  be  of  great  benefit  to  the  State  of  Georgia, 

forming  a  most  important  feeder,  and  practically  an  extension 

of  the  Western  &  Atlantic  Railroad,  which  is  the  property  of 

the  state,  and  giving  to  our  commerce  the  advantage  of  a  direct 

and  admirable  connection  with  the  railway  system  of  the  North 

and  West;  and, 

WHEREAS,  Said  railroad  reaches  the  Western  &  Atlantic  Rail- 
road at  Boyce's  station,  and  for  the  most  of  the  distance  to  the 
termini  of  the  two  railroads  in  Chattanooga,  their  routes  run 


NASHVILLE,     CHATTANOOGA    *    ST.     LOUIS    RAILWAY.          363 

parallel  to  and  adjoining  each  other,  a  distance  of  about  6ve 
miles;  and, 

WHKHKAS,  It  is  to  the  advantage  of  both  railroads  to  lie  able 
to  locate  their  tracks  and  works  close  together,  thus  saving  ex- 
pense to  one  in  construction,  and  to  both  in  maintaining  the  road- 
bed and  facilitating  railroad  operations,  and  giving  to  l>oth  rail- 
roads the  advantage  of  a  stronger  and  tinner  road  I  red,  through 
a  route  subject  to  overflow  by  floods  in  the  Tennessee  river — 

There  is  hereby  granted  to  the  trustees  of  the  Cincinnati 
Southern  Railroad,  for  the  use  of  said  railroad,  the  use  of  that 
portion  of  the  right  of  way  of  the  Western  &  Atlantic  Railroad 
between  Boyce's  station,  Tennessee,  and  the  Chattanooga,  Ten- 
essee,  terminus,  that  lies  west  ward  ly  of  a  line  running  parallel 
with,  and  nine  and  a  half  feet  westerly  from  the  center  of  the 
track  of  the  Western  &  Atlantic  Railroad,  so  as  to  admit  of 
laying  track,  if  desired,  near  enough  to  the  track  of  the  Western 
&  Atlantic  Railroad  to  leave  the  distance  between  the  centers  of 
the  tracks  fourteen  feet,  and  between  the  nearest  rails  of  the 
two  railroads  nine  feet;  Provided  nlir>ay>t,  That  this  grant  is  sub- 
ject to  the  consent  and  approval  of  the  lessees  of  the  Western 
&  Atlantic  Railroad,  as  to  the  term  of  their  lease;  Provided 
further,  That  the  grade  adopted  by  the  said  Cincinnati  Southern 
Railroad,  along  and  over  the  aforegranted  right  of  way,  shall 
always  be  the  same  as  that  of  the  Western  &  Atlantic  Railroad. 

SEC.  2.  All  acts  and  parts  of  acts  inconsistent  with  this  act 
are  hereby  repealed.  (Acts  Georgia,  1878-79,  p.  218;  approved 
October  8,  18?}).) 

The  Cincinnati  Southern  Railway  is  now  leased  and  operated  by  the 
Cincinnati.  New  Orleans  &  Texas  Pacific  Railway. 

3.  Dalton  &  Gadsden  Railroad  Company  allowed  to  build  on 
right  of  way  of  Western  &  Atlantic  Railroad,  how. 

SECTION  1 .  Rr  it  further  enacted,  That  his  excellency  the 
governor,  be,  and  he  is  hereby,  authorized  to  grant  to  the  said 
Dalton  &  (iadsden  Railroad  Company  the  right  to  construct  and 
build  their  railroad,  for  a  short  distance,  upon  the  right  of  way 
of  the  Western  &  Atlantic  Railroad;  l^rwided,  The  said  Dalton 
&  Gadsden  Railroad  grant  similar  privileges  to  the  Western  & 


364         ACTS    OF    GEORGIA    RELATING    TO    W.    A    A.    BRANCH 

Atlantic  Railroad;  And  provided  further,  That  such  grant  to 
said  Dalton  &  Gadsden  Railroad  Company  be  not,  in  the  opinion 
of  the  governor,  incompatible  with  the  public  interests. 

SEC.  2.  Repeals  conflicting  laws.  (Acts  Ga.,  1859,  p.  313; 
approved  December  14,  1859.) 

This  road  subsequently  changed  its  name  to  Dalton  &  Jacksonville 
Railroad. 

4.  Georgia  Western  Railroad  Company  and  Polk  State  Quarry 

Railroad  Company  authorized  to  build  on  right  of  way  of 
Western  &  Atlantic  Railroad,  how. 

SEC.  2.  That  his  excellency  the  governor,  be,  and  he  is 
hereby,  authorized  to  grant  to  the  Georgia  Western  Railroad 
Company  the  right  to  construct  and  build  their  railroad  on  the 
right  of  way  of  the  Western  &  Atlantic  Railroad  within  and 
adjacent  to  the  city  of  Atlanta;  or,  if  expedient,  to  any  dis- 
tance east  of  the  Chattahoochee  river,  on  the  same  conditions 
as  the  grant  to  the  Dalton  &  Gadsden  Railroad  Company  em- 
braced in  an  act  entitled  "An  act  to  authorize  the  governor  to 
grant  certain  rights  and  privileges  to  the  Dalton  &  Gadsden 
Railroad  Company."  (Approved  December  14,  1859.) 

SEC.  3.  That  his  excellency  the  governor,  be,  and  he  is 
hereby,  authorized  to  grant  to  the  Polk  State  Quarry  Railroad 
Company  the  right  to  construct  and  build  their  railroad  on  the 
right  of  way  of  the  Western  &  Atlantic  Railroad  Company 
within  and  adjacent  to  the  city  of  Marietta;  or,  if  expedient,  to 
any  distance  east  of  the  Kennesaw  mountain,  on  the  same  con- 
ditions as  the  grant  to  the  Dalton  &  Gadsden  Railroad  Com- 
pany (approved  December  14,  1859);  Provided,  The  privileges 
of  the  right  of  way  granted  by  this  act  shall  not  extend  beyond 
one  mile  from  depot  in  Atlanta  and  Marietta,  and  upon  the  said 
roads  paying  so  much  for  the  said  right  of  way  as  the  governor 
may  deem  right  and  proper  for  the  interests  of  the  state.  (Acts 
Ga.,  1860,  p.  192;  assented  to  December  20,  1860.) 

5.  G.  W.  Keith  authorized  to  run  mill  race  under  right  of  way 

of  Western  &  Atlantic  Railroad  at  a  point  one  mile  south 
of  Dalton. 

WHEREAS,  G.  W.  Keith  is  the  owner  of  a  lot  of  land,  num- 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         365 

ber  two  hundred  and  seventy-seven  (277),  in  the  twelfth  (12th) 
district  of  the  third  (3d)  section  of  Whitfield  county,  Georgia; 
and. 

\YIIEKEAS,  The  Western  &  Atlantic  Railroad  runs  through 
said  lot  of  land,  and  owns  the  right  to  do  so;  and, 

WHEKKAS,  Said  Keith  owns  a  valuable  mill  shoal  near  the 
right  of  way  of  said  railroad;  and, 

WIIEKEAS,  It  is  necessary,  in  order  to  utilize  said  water 
power,  to  run  a  plank  race  under  the  trestle  bridge  of  said  road; 
therefore, 

SECTION  1.  Be  it  enacted  by  the  General  Aatu'inbly  of  the 
Sf,if,'  of  Georgia,  That  said  G.  W.  Keith  be  allowed  to  run  a 
plank  race,  l>eginning  west  of  the  Western  &  Atlantic  Railroad, 
running  in  a  southeasterly  direction,  under  a  trestle  bridge  of 
said  railroad  where  it  crosses  a  creek  about  one  mile  south  of 
Dalton,  Ga. ;  Provided,  It  can  be  done  without  injury  to  said 
railroad;  And  provided  further,  That  he  procures  the  written 
consent  of  the  president  of  the  Western  &  Atlantic  Railroad 
Company  to  build  said  race;  Provided  further,  That  said  plank 
race  shall  be  discontinued  whenever  requested  by  the  presi- 
dent of  the  Western  &  Atlantic  Railroad  Company,  or  by  the 
governor  of  the  State  of  Georgia. 

SEC.  2.  Repeals  conflicting  laws.  (Acts  Ga.,  1877,  p.  354; 
approved  February  26,  1877.) 

6.  Gainesville  &  Western  Railroad  Company  authorized  to 
cross  Western  &  Atlantic  Railroad. 

SEC.  2.   ...     operate  a  railroad  from  the  city  of  Gaines- 
ville, in  Hall  county,  in  a  westerly  direction  through  the  coun- 
ties of  Hall,  Lumpkin,  Dawson,  Forsyth,  Gilmer, 
Pickens,  Cherokee,  Cobb,  Paulding,  Bartow,  Whit- 
tield  or  Gordon,  crossing  the  Western  &  Atlantic  Railroad  and 
extending  to  some   point  on  the  East  Tennessee,  Virginia  & 
Georgia   Railroad     .     .     .     (Acts  Ga.,    1884-5,   p.   249;  ap- 
proved October  13,  1885.) 

There  were  no  terms  or  conditions  imposed  as  to  crossing  in  act. 


306         ACTS    OF    GEORGIA    RELATING    TO    W.    &    A.     BRANCH 

7.  Marietta  &  North  Georgia  Railroad  authorized  to  build  on 
right  of  way  of  Western  &  Atlantic  Railroad  from  Ma- 
rietta to  marble  mills,  how. 

WHEREAS,  The  Marietta  &  North  Georgia  Railroad  Company 
is  an  important  feeder  to  the  Western  &  Atlantic  Railroad;  and, 

WHEREAS,  It  is  and  has  been  necessary  for  said  Marietta  & 
North  Georgia  Railroad  to  use  (by  and  with  the  consent  of  the 
lessees  of  the  Western  &  Atlantic  Railroad)  a  portion  of  the 
right  of  way  of  the  Western  &  Atlantic  Railroad,  in  order  to 
deliver  its  freight  and  passengers  to  said  Western  &  Atlantic 
Railroad  Company,  and  is  still  necessary  for  the  purpose  of 
the  same;  therefore,  be  it 

Resolved  by  the  General  Assembly  of  the  State  of  Geory'm, 
That  the  charter  of  the  said  Marietta  &  North  Georgia  Railroad 

Company  be  so  amended  as  to  authorize  and  em- 
Charter  Of   M.  .  ,       ,,        .     A  „       -VT  ,»     ., 

&  N.  Ga.  R.  R.  power  said  Marietta  &  North  Georgia  Railroad 
amended. 

Company  to  lay  out  and  construct  their  road  from 

the  city  of  Marietta,  in  the  county  of  Cobb,  to  the  marble  mills 
north  of  said  city  of  Marietta,  upon  the  right  of  way  of  the 
Western  &  Atlantic  Railroad,  including  that  portion  now  occu- 
pied by  the  said  Marietta  &  North  Georgia  Rail- 
way author-  road  within  the  limits  of  the  citv  of  Marietta,  and 
lied. 

to  perpetually  use  and  occupy  the  same  for  railroad 

purposes;  Prwided,  That  said  Marietta  &  North  Georgia  Rail- 
road Company  shall  in  no  way  interfere  with  tracks 

Proviso. 

or  right  of  way  now  in  use   by  said   Western  & 

Atlantic  Railroad;  Provided  further,  That  this  shall  not  apply 
to  more  than  fifteen  (15)  feet  on  the  extreme  eastern  edge  or 

side  of  said  right  of  way,  and  that  due  compensa- 
Compensation.  l 

tion  shall  be  paid  for  the  same  to  the  state.     Ihis 

shall  be  submitted  to  arbitration,  one  arbitrator  to  be  selected 
by  the  governor  and  one  by  said  Marietta  &  North  Georgia 
Railroad  Company,  and,  in  case  they  cannot  agree,  said  arbi- 
trators to  select  a  third,  whose  decision  shall  be  final;  Provided 
further,  That  the  consent  of  the  present  lessees  of  the  Western 
&  Atlantic  Railroad  Company  be  first  obtained  to  the  use  of 
said  right  of  way  as  aforesaid,  and  that  they  consent  that  any 


NASHMI.I.K,    CHATTANOOGA    A    ST.    IX)U18    RAILWAY.          367 

and  all  condensation  paid  to  the  state  therefor  shall  in  no  case 
accrue  to  them  by  any  contract  or  lease  now  in  force  between 
them  and  the  state. 

Be  it  further  remtlved  by  the  authority  afotwald,  That  all 
laws  and  parts  of  laws  in  conflict  with  this  resolution  l>e,  and 
the  same  are  hereby,  repealed.  (Acts  Ga.,  1884-85,  p.  677 
(resolution);  approved  October  9,  1885.) 

The  Marietta  «fc  North  (leorgia  Railroad  has  recently  been  sold  under 
decree  of  the  United  States  Circuit  Court,  and  purchased  by  the  Atlanta, 
Knoxville  «fc  Northern  Construction  Company,  which  has  subsequently 
been  incorporated  as  the  Atlanta,  Knoxville  &  Northern  Railway  Com- 
pany- 

8.  Georgia  Overland  Railway  &  Improvement  Company  au- 

thorized to  cross  Western  &  Atlantic  Railroad. 

SEC.  2.  .  .  .  to  connect  with  the  railroad  systems  of 
Alabama,  and  the  steamboat  systems  of  the  Coosa  river,  from 
the  said  available  point  on  the  boundary  line,  in  a  northeasterly 
direction  through  either  or  all  of  the  counties  of  Floyd,  Chat- 
tooga,  Walker,  (iordon,  Whitfield,  Murray,  Gilmer,  Fannin, 
and  Union,  to  the  most  available  point  on  the  boundary  line 
between  the  states  of  Georgia  and  Tennessee  or  North  Carolina, 
in  the  direction  of  the  town  of  Murphy,  in  the  State  of  North  Car- 
olina, crossing  the  Kast  Tennessee,  Virginia  &  Georgia  Railroad 
and  the  Western  &  Atlantic  Railroad  at  or  near  the  city  of  Dai- 
ton,  in  Whittield  county;  with  power  also  to  the  said  company  to 
survey,  lay  out,  contract,  equip,  maintain,  and  operate  one  or 
more  branches  from  any  convenient  point  or  points  along  the 
line  of  said  railroad  to  any  towns,  mines,  factories,  etc.,  within 
the  counties  named  in  this  charter.  .  .  .  (Acts  Ga.,  1888, 
p.  173;  approved  Decemlxjr  26,  1888.) 

There  were  no  conditions  specified  in  the  above  act  as  to  terms  of 
crossing. 

9.  Lessees  of  Western  &  Atlantic  Railroad  authorized  to  con- 

struct side  tracks  across  certain  roads,  when  and  how. 

The  General  Assembly  of  Georgia  do  enact  as  follows: 
SECTION  1.    Re  it  enacted,  That  whenever  the  lessees  of  the 
Western  &  Atlantic  Railroad  shall  desire,  or  whenever  it  is  nec- 
essary to  reach  the  patrons  of  said  road,  said  lessees  l>e,  and 


ACTS    OF    GEORGIA    RELATING    TO    W.    &    A.     BRANCH 

they  are  hereby,  authorized,  at  their  own  expense,  to  build 
and  construct  side  tracks  across  the  lines  of  other  roads,  when- 
ever such  other  roads  occupy  a  part  of  such  right  of  way  of  the 
Western  &  Atlantic  Railroad. 

SEC.  2.  Be  it  further  enacted,  That  all  laws  and  parts  of  laws 
in  conflict  herewith  be,  and  the  same  are  hereby,  repealed.  (Acts 
Ga.,  1889,  p.  351;  approved  November  11,  1889.) 

10.  Catoosa  Springs  Company's  railroad  authorized  to  be 
built  on  right  of  way  of  Western  &  Atlantic  Railroad 
from  Ringgold  to  bridge  across  Chickamauga  creek,  how. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the 
State  of  Georgia,  That  the  act  incorporating  the  Catoosa 
Springs  Company,  with  power  to  construct  a  railroad,  ap- 
proved the  twenty-fourth  day  of  October,  1887,  be,  and  the 
same  is  hereby,  amended  so  as  to  authorize  said  company  to 
use  a  part  of  the  right  of  way  of  the  Western  &  Atlantic  Rail- 
road, between  some  point  at  or  near  the  depot  of  the  Western 
&  Atlantic  Railroad  at  Ringgold,  Catoosa  county,  and  a  point 
at  or  near  the  first  railroad  bridge  across  Chickamauga  creek, 
on  said  railroad,  south  of  Ringgold,  for  the  purpose  of  con- 
structing and  laying  the  track  of  the  railroad  authorized  to  be 
constructed  and  built  by  the  Catoosa  Springs  Company,  as  pro- 
Proviso  as  to  vided  in  the  original  act  incorporating  such  company; 
w.  &  A.  R.  R.  Provided,  Nothing  in  this  act  contained  shall  be  so 

7  O 

construed  as  to  give  said  company  the  right  to  so  construct  and 
lay  the  track  of  said  railroad  as  will  in  any  manner  obstruct  or 
interfere  with  the  track  of  the  Western  &  Atlantic  Railroad,  or 
with  any  repairs  that  maj  be  required  to  be  made  thereon  at 
any  time  hereafter;  And  provided  further,  The  right  to  use  a 
part  of  the  right  of  way  of  the  Western  &  Atlantic  Railroad, 
between  the  depot  at  Ringgold  and  the  first  railroad  bridge  across 
Chickamauga  creek,  shall  be  limited  to  the  use  of  not  more  than 
one-half  mile  of  said  right  of  way  in  a  continuous  line;  Provided 
further,  That,  before  the  said  company  shall  have  the  authority 
to  use  any  part  of  the  right  of  way  or  property  of  the  Western 
&  Atlantic  Railroad,  just  and  adequate  compensation  shall  be 
first  paid  to  the  state. 


NAS1IV  ll.I.K.    CHATTANOOGA    &    ST.     LOUIS    RAILWAY.          369 

Si :c.  2.  Be  it  furtlier  enacted.  That  in  order  to  determine 
the  <|iic-4ion  of  what  is  just  and  adequate  compensation  to  be 
l>aid  to  the  state,  the  provisos  of  the  act  incorporating  the  said 

company  as  to  condemnation  shall  apply,  the  gov-  Governor  to 

.        .  represent 

ernor  to  represent  the  state  in  the  selection  of  as-  state. 

sessors;  and  the  right  of  appeal  from  the  award  of  the  assess- 
ors shall  also  l>e  as  is  provided  in  said  act,  the  governor  to 
represent  the  state  for  that  purpose  also;  Provided^  That  in  no 
event  shall  any  part  of  the  right  of  way  of  the  Western  & 
Atlantic  Railroad  he  condemned  where  it  will  in  any  way  inter- 
fere with  the  perfect  operation  of  said  Western  &  Atlantic 
Railroad;  J'/'ovided,  That  this  company  shall  pay  to  the  legal 
authorities  in  control  of  the  Western  &  Atlantic  Railroad,  or 
the  State  of  Georgia,  a  just  and  reasonable  compensation  an- 
nually so  long  as  they  may  use  said  right  of  way;  Provided 
further,  That  the  Catoosa  Springs  Railroad  Company  shall  not 
occupy  the  right  of  way  so  as  to  prevent  the  laying  of  a  double 
track  l>etween  Catoosa  station  and  the  town  of  Ringgold,  the 
compensation  for  the  use  of  right  of  way  to  be  determined  by 
Arbitration. 

SKC.  3.  Be  it  further  enacted,  That  all  laws  and  parts  of 
laws  in  conflict  with  this  act  be,  and  the  same  are  hereby, 
repealed.  (Acts  Ga. ,  1889,  p.  442;  approved  November  13, 
1889.) 

The  Catoosa  Spring's  Company  was  incorporated  October  24,  1887,  by 
act  of  legislature,  which  granted  them  the  power  to  construct  a  railroad 
on  the  plan  of  a  street  or  tram  railway,  from  the  right  of  way  of  the 
Western  &  Atlantic  Railroad,  in  Catoosa  county,  to  Catoosa  Springs,  in 
the  same  aounty. 

11.  Georgia,  Alabama  &  Carolina  Railroad  Company  author- 
ized to  cross  Western  &  Atlantic  Railroad. 

SEC.  2.  Be  it  further  enacted,  That  said  corporation  shall 
have  power  and  authority  to  survey,  lay  out,  construct,  and 
equip,  and  to  own,  operate,  and  maintain,  a  railroad  from  some 
point  on  the  dividing  line  between  the  States  of  Alabama  and 
Georgia  north  of  the  C/oosa  river,  or  between  the  city  of  .Gads- 
den  and  the  Tennessee  State  line,  thence  through  the  State  of 
Georgia,  crossing  the  Western  &  Atlantic  Railroad  at  some 

24 


370    RESOLUTIONS  OF  GEORGIA  RELATING  TO  W.   &  A.   BRANCH 

point  between  the  towns  of  Dalton  and  Cartersville,  with  the 
right  to  pass  through  and  enter  any  of  the  counties,  towns,  and 
cities,  etc (Acts  Ga.,  1889,  p.  409;  approved  No- 
vember 13,  1889.) 

There  were  no  conditions  specified  as  to  crossing  in  the  above  act. 

12.  Fail-mount  Valley  Railroad  not  to  run  nearer  than  ten 
miles  of  Western  &  Atlantic  Railroad,  when. 

SEC.  2.  Be  it  further  enacted,  That  said  company  is  hereby 
authorized  and  empowered  to  survey,  lay  out,  construct,  and 
build  a  railroad  from  the  city  of  Cartersville  (or  such  other 
point  as  they  may  select  on  the  Western  &  Atlantic  Railroad), 
in  the  county  of  Bartow,  through  the  counties  of  Bartow,  Gor- 
don, Murray,  and  Fannin,  to  the  state  line  between  Georgia 
and  Tennessee;  Provided,  That  after  the  first  ten  miles  said 
road  shall  not  run  nearer  than  ten  miles  to  the  Western  &  At- 
lantic Railroad.  .  .  .  (Acts  Georgia  1889,  p.  384;  ap- 
proved November  4,  1889.) 

RESOLUTIONS  OF  GEORGIA  RELATING  TO 
WESTERN  &  ATLANTIC  RAILROAD. 

1.    Resolution  directing  governor  to  ascertain  on  what  terms 

the  road  can  be  extended  to  the  Tennessee  river  in  the  state  of 

» 

Tennessee.      (Acts  Georgia,  1836,  Pam.  3.) 

'2.  Req nesting  the  governor  to  dispatch  a  special  agent  to 
Tennessee  to  negotiate  in  behalf  of  the  state,  for  the  purpose  of 
authorizing  the  extension  of  the  road  to  Tennessee  river.  (Acts 
Georgia,  1837,  Pam.  270.) 

3.  Offering  to  secure  similar  privileges  to  any  road  in  Ten- 
nessee seeking  to  connect  with  Western  &  Atlantic  Railroad  in 
Georgia;  Provided,  The  State  of  Tennessee  grants  the  privilege 
of  extending  that  road  to  Tennessee  river.  (Acts  Georgia,  1837, 
Pam.  271.) 

-L  Approving  the  Hiwassee  Railroad  Company's  connection 
with  the  state  road,  and  directing  an  experimental  survey  by 
Red  Clay  to  the  Tennessee  river.  (Acts  Georgia,  1838,  Pam. 

281,  282,  283,  2S4.) 

The  n^m^  of  the  Hiwassee  Railroad  Company  was  changed  by  Acts 
Tennessee.  1847-48.  ch.  169,  p.  272,  sec.  3.  to  the  East  Tennessee  &  Georgia 
Railroad  Company. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         371 

ACTS  OF  TENNESSEE   IN  RELATION  TO  WEST- 
ERN  &  ATLANTIC   RAILROAD. 

1.  Georgia  granted  rights  of  Nashville  &  Chattanooga  Rail- 

road Company  in  Tennessee  in  building  Western  &  At- 
lantic Railroad. 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  Tennes- 
see, That  all  the  rights,  privileges,  and  immunities,  with  the 
same  restrictions  which  are  given  and  granted  to  the  Nashville 
&  Chattanooga  Railroad  Company  by  the  act  of  the  general 
assembly  of  this  state  incorporating  said  company,  passed 
December  11,  1845,  are,  so  far  as  they  are  applicable,  hereby 
given  to  and  conferred  upon  the  State  of  Georgia,  to  be  enjoyed 
and  exercised  by  that  state  in  the  construction  of  that  part  of 
the  Western  &  Atlantic  Railroad  lying  in  Hamilton  county, 
Tennessee,  and  in  the  management  of  its  business.  (Acts 
Tenn.,  1847-8,  ch.  195,  p.  330;  passed  February  3,  1848.) 

2.  Georgia  granted  rights  of  Hiwassee  Railroad  Company  in 

Tennessee  in  building  Western  &  Atlantic  Railroad. 

SECTION  1.  B»-  it  enacted  by  tfte  General  Assembly  of  the 
State  of  Tennessee,  That  the  State  of  Georgia  shall  be  allowed 
the  privilege  of  making  every  necessary  recognizance  and  sur- 
vey for  the  purpose  of  ascertaining  the  most  eligible  route  for 
the  extension  of  her  Western  &  Atlantic  Railroad  from  the 
Georgia  line  to  some  point  on  the  eastern  margin  of  the  Ten- 
nessee river. 

SEC.  2.  Re  It  further  enacted,  That  as  soon  as  said  route  and 
point  shall  be  ascertained,  the  State  of  Georgia  shall  be  allowed 
the  right  of  way  for  the  extension  and  construction  of  her  said 
railroad,  from  the  Georgia  line  to  the  Tennessee  river,  and  that 
she  shall  be  entitled  to  all  privileges,  rights,  and  immunities 
(except  the  subscription  on  the  part  of  Tennessee),  and  be  sub- 
ject to  the  same  restrictions,  as  far  as  they  are  applicable,  as 
are  granted,  made,  and  prescribed  for  the  l>enefit,  government, 
and  direction  of  the  Hiwassee  Railroad  Company. 

SEC.  3.  And  be  it  farther  enacted,  That  the  foregoing  rights 
and  privileges  are  conferred  upon  the  State  of  Georgia  on  con- 


372      ACTS    OF    TENNESSEE    RELATING    TO    W.    &    A.     BRANCH 

dition  that,  whenever  application  is  made,  she  will  grant  and 
concede  similar  ones,  and  to  as  great  an  extent,  to  the  State  of 
Tennessee  or  her  incorporated  companies.  (Passed  January 

24,  1838.) 

For  rights,  privileges,  and  immunities  of  the  Hiwassee  Railroad,  see 
charter  of  that  company  on  p.  63  herein. 

3.  Further  time  given  to  complete  Western  &  Atlantic  Rail- 
road. 

Be  it  enacted  by  tie  General  Assembly  of  the  State  of  Tennessee, 
That  the  further  time  of  two  3'ears,  from  the  first  day  of  Jan- 
uary next,  be  given  to  the  State  of  Georgia  to  complete  the 
Western  &  Atlantic  Railroad  of  that  state  to  Chattanooga,  on 
the  Tennessee  river.  (Acts  Tenn.,  1847-48,  ch.  14,  p.  43; 
passed  October  18,  1847.) 

3.  Memorial  of  Tennessee  legislature  to  Georgia  legislature 
in  regard  to  Western  &  Atlantic  Railroad  and  comity 
between  states. 

The  preservation  of  the  union  of  these  states  is  an  object  of 
the  highest  importance,  and  demands  the  most  profound  con- 
sideration of  every  patriot  and  statesman.  So  far  as  any  for- 
eign or  extraneous  influences,  calculated  or  intended  to  affect 

O  7 

its  permanence  or  impair  its  integrity,  are  concerned,  we  have 
nothing  to  fear;  so  long  as  a  unity  of  sentiment  on  the  subject 
of  our  national  honor  and  national  rights  is  cherished,  and  har- 
mony of  feeling  is  maintained  at  home,  we  have  nothing  to  fear 
from  the  enemies  of  our  institutions,  though  the}r  come  in  the 
imposing  form  of  the  combined  powers  of  earth. 

Harmony  among  the  states  composing  this  great  confederacy 
is  not  only  essential  to  the  advancement  of  all  the  great  inter- 
ests of  the  country,  but  is  of  indispensable  importance  to  the 
very  existence  of  the  union.  It  is  therefore  meet  and  proper 
that  each  of  the  states  composing  this  great  sisterhood  should 
labor,  as  far  as  may  be  in  their  power,  to  avoid  all  just  ground 
of  complaint,  and,  by  all  honorable  means,  endeavor  to  shun 
everything  that  is  calculated  to  produce  an  alienation  of  feeling 
or  in  any  way  disturb  the  kind  and  friendly  relations  that  should 
exist  between  members  of  the  same  great  family.  Cherishing 


NASHVILLE,    CHATTANOOGA    *    ST.     LOUIS    RAILWAY.          373 

sentiments  of  this  character,  whenever  grievances  are  believed 
to  exist  it  is  the  manifest  duty  of  the  party  aggrieved,  in  a 
spirit  of  kindness,  confidence,  and  frankness,  to  state  the  cause 
of  complaint.  And  it  is  equally  due  to  the  party  aggrieved 
that  the  complaint  should  be  received  in  the  same  spirit  of 
kindness,  and  if,  after  impartial  investigation,  they  should  be 
found  to  exist,  every  consideration  of  justice,  magnanimity, 
and  patriotism  demand  their  redress. 

Profoundly  anxious  to  maintain  the  kindest  and  most  amica- 
ble relations  with  our  sister  state  of  Georgia,  and  feeling  that 
those  kindly  relations  would  be  best  promoted  by  a  frank  pre- 
sentation of  the  evils  under  which  we  labor,  the  general  assem- 
bly of  the  State  of  Tennessee  would  respectfully  suggest  to 
the  legislature  of  the  State  of  Georgia  the  following  considera- 
tions: 

It  will  be  remembered  by  your  honorable  body  that  an  appli- 
cation was  made  by  the  general  assembly  of  your  state  to  the 
legislature  of  this  state,  during  the  winter  of  1837-8,  for  the 
privilege  of  extending  her  Western  &  Atlantic  Railroad  from 
the  Georgia  line  to  the  margin  of  the  Tennessee  river,  within 
the  limits  of  Tennessee,  and  that  certain  rights,  powers,  priv- 
ileges, and  immunities  were  granted  to  the  said  Western  & 
Atlantic  Railroad,  on  the  express  condition  that  similar  powers, 
rights,  privileges,  and  immunities  should,  on  application,  be 
conceded  to  the  State  of  Tennessee,  or  her  incorporated  com- 
panies. In  accordance  with  this  agreement,  during  the  winter 
of  1847,  an  application  was  made  to  the  legislature  of  Georgia 
for  a  grant  of  the  rights  and  privileges  as  stipulated  in  the 
compact,  to  the  Hiwassee  (now  the  East  Tennessee  &  Georgia) 
Railroad  Company.  This  application  was  promptly  met  and 
the  pledges  faithfully  redeemed. 

The  East  Tennessee  &  Georgia  Railroad  Company,  relying 
with  implicit  confidence  on  the  good  faith  of  the  compact,  have 
proceeded  to  construct  their  road  through  the  territory  of 
Georgia  to  the  town  of  Dalton.  In  executing  the  powers  thus 
granted  to  them,  the  East  Tennessee  &  Georgia  Railroad  Com- 
pany have  met  with  many  difficulties,  and  been  subjected  to 


374      ACTS    OF    TENNESSEE    RELATING    TO    W.     &    A.    BRANCH 

many  annoyances  and  inconveniences,  resulting  in  serious  dam- 
ages to  the  company,  all  of  which  they  think  are  in  contraven- 
tion of  the  clearly  expressed  stipulations  of  the  compact,  and 
in  violation  of  its  spirit  and  intention.  These  annoyances  have 
been  many  and  various,  resulting  in  delays  and  damages,  by 
the  institution  of  lawsuits,  greatly  to  the  detriment  of  the 
company,  in  violation  of  the  claims  of  justice,  and  in  deroga- 
tion of  that  spirit  of  concord,  harmony,  and  affection  that 
should  exist,  not  only  between  the  states  or  sovereigns  in 
equality,  but  between  the  citizens  of  these  sovereignties. 

We  would,  therefore,  respectfully  suggest  to  your  honorable 
body  that  you  cause  such  inquiry  to  be  made  into  those  alleged 
wrongs  as  justice,  and  a  determination  to  maintain  inviolate 
the  plighted  faith  of  the  state,  may  demand.  And  should  they 
be  found  to  exist,  we  doubt  not  your  readiness  to  apply  the 
corrective,  and  make  all  proper  amends. 

Having  disposed  of  this  question,  you  will  pardon  us  for  ad- 
verting to  some  other  subjects  of  mutual  interest,  and  which 
seem  to  demand  our  consideration.  Following  the  noble  ex- 
ample which  you  have  set  us  and  your  sister  states  of  the  south, 
in  the  adoption  of  an  enlarged  and  liberal  system  of  internal 
improvements,  by  which  you  have  erected  a  monument  for 
yourselves  as  enduring  as  time,  we  have  partaken  of  the  same 
spirit  and  entered  the  field  in  the  same  race,  and  seek  now,  in 
the  infancy  of  our  undertakings,  to  establish  such  relations  as 
may  conduce  to  our  common  interests,  and  in  the  end  redound 
to  the  honor,  peace,  and  prosperity  of  all.  You  are  doubtless 
aware  that  the  citizens  of  this  state,  with  such  aid  as  the  state 
has  given  them,  have  embarked  in  a  system  of  internal  im- 
provements of  no  small  proportions.  You  are  aware  that  sev- 
eral hundred  miles  of  road  are  now  being  constructed  in  Tennes- 
see amounting,  when  completed,  to  not  less  than  seven  hundred, 
costing  many  millions  of  dollars,  and  all  directed  to  your  state 
road,  and  every  mile  of  which  must  be  tributary  to  your  great 
lines  of  improvements,  pouring  their  rich  treasures  into  your 
lap,  not  only  by  largely  increasing  the  dividends  on  your 
works,  but  by  enlarging  and  multiplying  your  commerce  to  an 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         375 

extent  as  yet  undefined,  and  which  the  imagination  is  scarcely 
bold  enough  to  conjecture. 

Seeing  the  vast  community  of  interest  springing  up  l>etween 
us,  and  which,  if  cherished  and  protected,  must  go  on  multi- 
plying and  expanding  to  an  almost  unlimited  extent,  is  it  not 
most  proper  and  important  that  we  should  now,  in  the  incipi- 
ency  of  things,  when  but  few  causes  of  complaint  exist,  when 
no  feelings  of  distrust  have  been  engendered,  to  establish  such 
an  understanding  and  enter  into  such  a  comity  as  will  forever 
save  us  from  discord,  and  establish  such  ties  of  friendship  and 
relationship,  of  social  and  commercial  identity,  as  shall  secure 
the  harmony  and  interest  of  all,  and  establish  the  great  prin- 
ciple of  a  reciprocity  oi'  kind  feelings,  good  offices,  and  mutual 
dependence,  on  a  basis  as  firm  and  immutable  as  time  itself. 

All  the  various  roads  now  being  constructed  in  this  state,  and 
in  which  you  have  a  large  interest,  are  the  property  of  incor- 
porated companies,  the  stock  owned  chiefly  by  individual  stock- 
holders, and  consequently  liable  to  all  the  restrictions  imposed 
by  their  several  acts  of  incorporation,  and  amenable  to  all  re- 
sponsibilities and  liabilities  of  common  carriers.  These  restric- 
tions and  liabilities  are  conceded  to  l>e  essential  to  a  just  and 
reasonable  protection  of  the  rights  of  persons  and  property. 
If,  by  negligence,  inattention,  incompetency  of  officers  or 
agents,  or  negligence  of  any  kind,  the  rights  or  interests  of  any 
of  your  citizens  are  compromised  or  sacrificed,  the  remedy  is 
plain,  and  the  redress  easy  and  certain.  Not  so  in  the  case  of 
the  Western  &  Atlantic  Railroad.  Thig  is  exclusively  the 
property  of  your  state.  Its  property  and  rights  are  vested  in 
a  sovereignty,  and  consequently  exempt  from  the  liabilities 
that  attach  to  individuals  or  companies  of  incorporation. 
Should  damages  result  to  citizens  of  your  state  or  ours,  or 
any  of  our  sister  states,  what  remedy,  what  redress  have  we 
or  they  now  but  such  as  a  sense  of  justice  of  the  legislature 
may  accord  them,  and  which,  if  obtained,  must  be  done  with 
much  delay  and  great  expense  ?  Difficulties  enough  in  many 
instances  to  amount  to  a  denial  of  justice,  in  consequence  of 
the  inconvenience  of  making  the  application  to  the  only  source 
of  redress,  the  legislative  power  of  your  state. 


376      ACTS    OF    TENNESSEE    RELATING    TO    W.    &    A.     BRANCH 

May  we  not,  therefore,  ask  that  you  will  take  such  action  as 
your  sense  of  justice  and  fairness  may  suggest — such  as  will 
place  all  the  interests  involved  on  a  footing  of  equality — such  as 
will  secure  a  faithful  administration  of  your  road,  quiet  all 
apprehensions,  and  give  confidence  and  efficiency  to  our  great 
enterprises  ? 

There  is  but  one  other  point  to  which  we  would  call  your 
attention  and  claim  your  earnest  consideration.  And  that  is 
the  obstruction  that  exists  at  the  Savannah  river.  However 
much  may  be  said  by  the  advocates  of  free  trade  between  the 
nations  of  the  earth,  on  one  side,  or  the  opponents  of  that  sys- 
tem on  the  other;  however  plausible  their  theories  may  be  on 
the  one  side  or  the  other,  they  have  nothing  to  do  with  the 
question  under  consideration.  So  far  as  a  full,  free,  and  unre- 
strained interchange  of  commodities  between  these  states  is 
concerned,  there  is  no  difference  of  opinion.  In  this  all  concur. 
Statesmen  of  all  parties  agree  that  useless,  unnecessary,  and 
voidable  restrictions  to  the  full,  free,  and  liberal  intercourse, 
social  and  commercial,  between  all  the  states  of  the  union,  is 
at  war  with  the  spirit  of  our  institutions,  and  dangerous  to  its 
harmony  and  stability,  and  in  its  tendencies  subversive  of  the 
great  charter  of  our  rights,  and  of  that  spirit  of  kindness  and 
friendship  without  which  the  union  is  a  mere  mockery,  and 
cannot  survive  the  conflicts  of  party  and  the  storms  of  passion 
and  prejudice.  Whenever  obstructions  necessary  and  unavoid- 
able are  to  be  met,  all  will  bow  submissively  to  the  burdens 
they  impose.  But  when  there  is  no  such  necessity,  every  sense 
of  justice  and  equality  demands  their  abatement.  Devotion  to 
the  union,  equality  of  rights,  the  peace  and  happiness  of  so- 
ciety, the  enlarged  and  liberal  spirit  of  the  age,  the  age  of  pro- 
gression and  improvement,  all  demand  their  abatement.  Is 
not  this  obstruction  of  this  character,  and  does  it  not  demand 
your  favorable  consideration  ?  Is  there  any  necessity  for  the 
continuance  of  this  obstruction  ?  Does  the  interest  of  your 
state  require  it,  and  is  it  in  accordance  with  the  great  princi- 
ples we  profess  ?  If  one  state  may  erect  a  barrier  to  the  free 
intercourse  between  the  states,  then  may  another  and  another 


N  \SHVILLE,    frJHATTAXOfMIA    <fe    ST.     LOUIS    RAILWAY.          377 

do  the  same  thing,  and  when  this  spirit  is  turned  loose  on  the 
country,  none  can  doubt  the  result — anarchy,  discord,  and 
ruin  must  rule  supreme. 

The  burthens  imposed  by  this  obstruction  on  the  productions 
of  the  West  and  the  transportation  of  persons,  are  most  op- 
piv-sive,  amounting,  for  the  short  distance  of  lo?s  than  one 
mile,  to  a  cost  equal  to  about  sixty  or  seventy  miles  of  railroad 
transportation.  We  will  not  trespass  on  your  patience  in  this 
communication  by  enumerating  the  various  items  of  cost  thus 
imposed,  but  refer  you  to  the  schedule  of  freights  and  charges 
thus  exacted.  All  political  economists  in  our  country  agree 
that  a  tarifl  of  charges  on  a  transfer  of  property  between  the 
states  is  not  to  be  tolerated. 

We  are  unable  to  see  the  difference  between  your  laying  a 
direct  tax  of  twenty-live  cents  per  bale  on  our  cotton  and  fifty 
cents  per  capita  on  each  individual  who  enters  your  state  and 
proposes  to  pass  out  of  it,  and  the  no  less  certain  but  more  in- 
direct process  of  compelling  the  same  amounts  to  l>e  paid  in 
shajK-  of  dray  age  and  tolls.  The  result  is  the  same,  the  injus- 
tice the  same.  It  may  be  said  that  an  act  of  incorporation 
has  l>een  granted  to  the  owners  of  this  property,  and  that  it 
would  be  an  act  of  bad  faith  to  trespass  upon  the  rights  thus 
vested.  We  do  not  ask  or  desire  that  the  rights  of  states,  cor- 
porations, or  individuals  shall,  in  the  slightest  degree,  be  vio- 
lated or  disregarded.  None  would  go  further  than  we  in  main- 
taining them.  We  do  not  ask  that  the  rights  of  any  shall  be 
assailed;  we  only  ask  that  ours  may  )>e  protected.  If  the  leg- 
islature of  your  state  has  parted  with  her  sovereignty  and  con- 
trol over  this  subject,  we  do  not  invite  her  to  an  act  of  bad  faith. 
But  has  she  done  this  (  We  understand  not.  Supjxwe,  how- 
ever, that  the  power  to  control  bridges  over  the  Savannah  river 
for  three  or  four  miles  up  and  down  be  granted  to  the  corpora- 
tion of  Augusta,  we  would  not  have  it  violated,  except  by  con- 
sent or  payment  of  an  equivalent;  and  we  cannot  doubt  that 
considerations  connected  with  the  interest  of  citizens  of  (Jeorgia, 
as  well  as  those  of  Tennessee  and  Kentucky,  and,  in  fact,  the 
great  West,  most  likely  soon  to  l>e  placed  in  connection  by  rail- 


378      ACTS    OF    TENNESSEE    RELATING    TO    W..   &    A.     BRANCH 

way  improvements,  will  powerfully  induce  your  honorable  body 
to  pecuniary  appropriations,  or  some  other  legitimate  means 
which  may  effect  the  desired  object.  Granting  this  right,  which 
is  alleged  not  to  exist,  none  will  doubt  the  power  of  your  hon- 
orable body  to  grant  the  Georgia  Railroad  Company,  or  any 
other  company  you  may  choose  to  incorporate,  the  power  to 
construct  a  road  and  build  a  bridge  above  or  below  the  territory 
thus  assumed  to  have  been  consecrated  to  the  special  use  and 
benefit  of  the  corporation  of  Augusta. 

Candor  and  friendship  require  that  we  should  say  that  this 
question  is  one  of  great  importance  to  the  interest  of  our  citi- 
zens, and  that  it  is  a  cause  of  much  and  growing  complaint,  bod- 
ing no  good  to  the  commercial  intercourse  which  we  hope  to  see 
established  between  two  states  so  intimately  connected  in  every- 
thing that  is  calculated  to  advance  our  interest,  honor,  and 
prosperity.  Having  presented  these  subjects  to  your  consider- 
ation, we  cannot  doubt  that  their  importance  will  at  once  be 
obvious  to  you.  Nor  do  we  permit  ourselves  to  doubt  but  that 
you  will  receive  this  communication  in  the  same  spirit  of  can- 
dor, frankness,  and  friendship  in  which  it  is  dictated,  and  that 
your  wisdom  will  suggest  such  remedies  as  justice  may  demand 
and  the  great  interests  involved. 

Resolved,  That  this  communication  be,  and  the  same  is  hereby, 
adopted  by  the  General  Assembly  of  the  State  of  Tennessee, 
and  that  James  A.  Whitesides  be,  and  he  is  hereby,  appointed 
a  commissioner  on  the  part  of  this  state  to  communicate  the 
same  to  the  General  Assembly  of  the  State  of  Georgia,  and  use 
such  efforts  to  secure  the  accomplishment  of  the  objects  contem- 
plated as  may  be  in  his  power. 

Rwolved,  That  his  excellency,  the  governor  of  Tennessee,  be 
authorized  to  transmit  to  the  commissioner,  Mr.  James  A. 
Whitesides,  the  memorial  and  resolution  of  this  legislature  to 
the  legislature  of  Georgia,  setting  forth  the  grievances  of  which 
the  people  of  Tennessee  complain,  and  request  his  prompt  at- 
tention to  the  same.  (Acts  Tenn.,  1851-2,  p.  706,  No.  6; 
adopted  November  10,  1851.) 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         379 


CHAPTER  XXXII. 

THE  ROME  RAILROAD  COMPANY. 
(Ro.MK  BRANCH.) 

How  acquired  by  Nashville.  Chattanooga  &  St.  Louis  Rail- 
way.— On  December  31,  1896,  the  Koine  Railroad  Company, 
in  pursuance  of  a  resolution  of  its  directors  and  stockholders, 
held  at  its  principal  office  in  Rome,  Georgia,  prior  to  the  date 
above  mentioned,  sold  its  road,  properties,  rights,  and  fran- 
chises to  the  Nashville,  Chattanooga  &  St.  Louis  Railway. 
The  consideration  paid  was  the  sum  of  two  hundred  thousand 
dollars.  A  deed  to  the  same  was  properly  acknowledged  and 
registered  in  the  superior  court  of  Floyd  county,  Georgia,  in 
book  CCC  of  deeds,  page  96,  No.  60,  and  in  Bartow  county, 
in  book  GG,  pages  409-414.  The  deed  is  also  set  out  herein 
in  next  chapter. 

I.  Legality  of  the  purchase  of  the  road. — The  purchase  of  this  rail- 
road by  the  Nashville,  Chattanooga  «fe  St.  Louis  Railway  was  legal  under 
the  Acts  of  Tennessee,  1871,  ch.  69,  which  superseded  the  Acts  of  1871, 
ch.  22.  The  Rome  Railroad  Company  had  no  power,  under  its  charter, 
to  sell  its  road,  franchises,  etc.,  but,  on  December  30,  1896,  it  tiled  with 
the  secretary  of  State  of  Georgia  a  petition,  under  the  Acts  of  Georgia, 
1893,  page  89,  approved  December  20,  1893,  for  an  amendment  to  its 
charter,  so  as  to  enable  it  to  do  so.  On  the  same  day  the  petition  was 
granted,  and  all  the  powers  and  privileges  of  sections  13  and  18  of  an 
Act  of  Georgia,  1892,  page  37,  approved  December  17,  1892,  entitled,  "An 
Act  to  carry  into  effect  article  3,  section  7,  paragraph  18,  of  the  consti- 
tution of  this  state,"  etc.,  was  conferred  upon  it,  in  addition  to  the  power 
to  sell  and  convey  its  railroad  and  all  its  property  and  franchises  to  any 
railroad  company.  The  petition  and  amendment  is  set  out  herein  in  the 
next  chapter,  and  is  duly  registered  in  the  secretary  of  state's  office  at 
Atlanta,  Ga. 

2.  Effect  of  purchase  in  rendering  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  a  domestic  corporation  of  Georgia. — The  purchase  of 
this  road,  franchises,  etc.,  by  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  did  not  operate  to  incorporate  the  latter  company  in  the  State 
of  Georgia.  Elliott  on  Railroads,  sec.  20;  1  Hilton  (N.  Y.),  62;  30  N.  J.  L., 
473;  31  N.  J.  L.,  531;  32  Ohio  St.,  468;  58  Pa.  St.,  26.  See.  however,  85 
Trim. .  189.  It  doubtless  operates  to  domesticate  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  however,  as  to  the  line  of  the  Rome  Railroad, 
and  hence  no  suits  brought  against  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  growing  out  of  the  operation  of  this  line  of  road,  can  be 


380  ABSTRACT    OF    TITLE    TO    ROME    BRANCH  > 

removed  to  the  federal  court  upon  the  ground  of  "  nonresidence. "  74 
Ga.,  034,  citing  60  Ga.,  274;  108  U.  S.  R.,  436;  14  Minn.,  303;  43  Mich., 
354;  1  Wall.,  40;  12  Wall.,  65,  82.  See,  also,  59  Ga.,  263;  3  Tenn.  Chy., 
602;  21  Law  Rep.,  138;  53  Ala.,  237;  9  Am.  &  Eng.  R.  R.  C.,  201;  76  Ga., 
99;  90  Ga.,  523. 

What  franchises,  etc.,  passed  under  this  sale.— in  addition 

to  the  road  and  other  property  conveyed,  the  deed  specifically 
transferred  all  the  rights,  privileges,  and  franchises  of  the  Rome 
Railroad  Company.  These  rights  and  privileges  are  fully  set 
out  in  the  charter  and  amendments  thereto,  and  may  be  found 
further  on  in  this  chapter. 

Width  Of  right  Of  Way. — The  width  of  the  right  of  way  of 
this  branch,  as  appears  from  the  deed  to  the  same,  is  nowhere 
less  than  fifty  feet  in  width,  though  at  many  places  it  is  much 
broader,  as  will  fully  appear  in  the  deed  to  the  same,  which  is 
set  out  herein  in  the  next  chapter. 

The  charter  of  the  Rome  Railroad  Company,  which  was 
formerly  incorporated  as  the  Memphis  Branch  Railroad  & 
Steamboat  Company  of  Georgia,  as  will  be  hereafter  fully  ex- 
plained, contains  no  clause  providing  for  a  specified  width  of 
right  of  way  in  the  absence  of  any  contract  with  the  original 
landowner  or  in  the  absence  of  any  condemnation  proceedings, 
but  section  6  thereof  simply  provided  that  ' '  the  board  of 
directors  shall  have  power  to  select  and  take  or  receive  as  do- 
nation such  strip  or  strips  of  land  between  the  points  selected 
for  said  road,  and  of  such  width  as  they  may  deem  necessary 
for  the  construction  of  said  road,  and,  in  all  cases  in  which  dis- 
agreement may  arise  between  individuals  and  corporations  and 
the  directors  of  the  said  company  as  to  the  right  of  way  or 
damages  to  property  on  said  strip  or  strips  of  land,  it  may  and 
shall  be  lawful  for  the  company  to  appoint  a  competent  and 
disinterested  freeholder,  and  the  owner  or  owners  of  such  land 
shall  also  appoint  one  competent  and  disinterested  freeholder, 
both  of  whom  shall  be  sworn  by  some  judicial  officer  to  do 
equal  justice  between  the  parties,  and  they  shall  then  proceed 
upon  the  premises  as  a  committee  of  arbitration  and  appraise- 
ment," etc.  This  being  so,  only  the  number  of  feet  actually 
taken  or  donated  at  each  particular  point  can  now  constitute 


\\-Il\ll.l.i:.    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.          381    ' 

the  right  of  way,  and  to  determine  which  the  records  of  each 
county  through  which  the  road  runs  must  be  examined.  The 
deed  insures  at  least  fifty  feet  throughout  its  entire  line,  how- 
ever. 

1.  Successive    appropriation. — For  a  discussion  of    the   right    and 
method  of  taking  more  than  fifty  feet  for  the  right  of  way  when  neces- 
sary for  railroad  purposes,  see  Eminent  Danutin,   Right  of  irny.  herein. 
Refer  to  index. 

2.  The  right  to  condemn  land  for  right  of  way,  once  exercised,  is  ex- 
hausted and  not  afterwards  enlarged.     71  Ga.,  591. 

:'..  Railways,  under  the  general  law,  however,  may  take  lands  outside 
of  right  of  way  for  obtaining  sand.  etc.  97  Ga.,  107. 

4.  For  right  of  this  company  to  enjoin  building  on  right  of  way,  see 
27  Ga.,  477.  See,  also,  Riyht  of  Way,  herein.  Refer  to  index. 

Distance  built  wben  purchased  by  Nashville.  Chattanooga 

&  St.  Louis  Railway. — The  road  from  Rome  to  its  intersection 
with  the  Western  &  Atlantic  Railroad,  at  Kingston,  had  been 
constructed  when  the  purchase  was  made. 

ORIGINAL  CHARTER  OF  THE  ROME  RAILROAD 

COMPANY. 

[Acts  Georgia,  1839.  p.  105.] 

Preamble. — WHEREAS,  It  would  be  desirable  that  the  first 
practicable  railroad  should  be  constructed  from  the  southeast- 
ern seaboard  of  the  Atlantic  due  west;  and, 

WHEREAS,  The  State  of  Georgia  has  opened  a  railway  across 
the  most  formidable  obstacles  to  this  enterprise  within  her  ter- 
ritory, and  to  a  point  distant  some  thirty  miles  from  the  bound- 
ary of  Alabama;  and, 

WHEREAS,  The  Coosa  river  may,  while  the  railroad  con- 
struction is  finding  and  after,  afford  a  fair  steamboat  naviga- 
tion. 

SEC.  1.  Incorporation,  name. — Be  it  enacted  by  the  Senate 
and  House  of  Representatives  of  tlte  State  of  Georgia,  in  gen- 
eral axMinbly  liiet,  and  It  IM  hereby  enacted  by  the  authority  of 
the  Maine,  That,  for  the  purpose  of  completing  the  thirty  miles 
of  railroad  still  within  the  limits  of  Georgia  themselves,  and 
of  encouraging  others  to  join  in  the  continuation  of  the  same, 
in  its  onward  course  west,  and  for  the  purpose  of  trading  by 
steamboats  on  the  Coosa  river,  James  Liddle,  Andrew  Miller, 


382  ORIGINAL    CHARTER   OP    THE    ROME    BRANCH 

Joseph  Waters,  John  Smith,  Daniel  Irwin,  Robert  Ware, 
William  Hardin,  Philip  Hemphill,  James  Hemphill,  Robert 
Mitchell,  John  H.  Lumpkin,  Daniel  R.  Mitchell,  James  Ware, 
Edward  Ware,  James  H.  Rogers,  and  John  Dawson,  with  all 
such  others  as  may  hereafter  become  stockholders  in  said  com- 
pany, be,  and  they  are  hereby,  incorporated  and  made  a  body 
corporate  and  politic,  by  the  name  and  style  of  the  Memphis 
Branch  Railroad  &  Steamboat  Company  of  Georgia,  subject 
to  the  conditions,  restrictions  and  limitations  hereinafter  spec- 
fied. 

1.  Name  changed. — By  Acts  Ga.,  1849-50,  p.  243,   the  name  of  this 
company  was  changed  to  the  Rome  Railroad  Company.     See  act  itself  in 
next  chapter. 

2.  Charter  a  public  law. — An  act  incorporating  a  railroad  company 
is  a  public  law,  and  need  not  possibly  be  given  in  evidence.     74  Ga.,  509: 
55  Ala.,  413;  4  Pickle  (Tenn.),  140;  11  Hum.  (Tenn.).  219;  3  Sneed  (Tenn.), 
87. 

3.  Charter  a  contract. — The  charter  of  a  railroad  company  is  an  in- 
violable contract  between  the  state  and  incorporators.     62  Ga.,  473,  485. 
See.  also,  notes  to  sec.  34  of  charter  of  Nashville,  Chattanooga  &  St. 
Louis  Railway,  ch.  1,  herein.     This  contractual  relation,  however,  has 
since  been  impaired,  if  not  destroyed,  by  the  acceptance  of  the  amend- 
ment under  the  Acts  of  Ga..  1893,  p.  89,  authorizing  the  company,  among 
other  things,  to  sell  its  road.     The  acceptance  of  the  amendment  doubt- 
less brought  the  company  within  the  provisions  of  the  constitution  of 
Georgia  of  1877,  which  enables  the  state  to  amend  the  charters  of  all 
companies  at  pleasure. 

SEC.  2.  General  powers;  by-laws,  rules,  etc.— Be  it  further 

enacted  by  the  authority  aforesaid,  That  the  Memphis  Branch 
Railroad  &  Steamboat  Company  of  Georgia  shall  have  perpetual 
succession  of  members,  shall  be  capable  in  law  to  purchase,  ac- 
cept, hold,  sell,  and  convey  real  and  personal  estate;  that  they 
may  have  a  common  seal,  may  sue  and  be  sued,  plead  and  be 
impleaded  in  any  court  of  law  or  equity,  and  may,  at  meetings 
of  stockholders,  or  by  a  board  of  directors,  make  all  such  rules 
and  regulations  or  by-laws  as  are  necessary  and  proper  for 
the  good  of  the  corporation  and  of  effecting  the  objects  for 
which  it  is  created;  Provided,  Such  by-laws,  rules  and  regula- 
tions be  not  repugnant  to  the  constitution  of  this  state  and  of 
the  United  States. 

1.  Power  granted  to  consolidate  with  Memphis  Branch  Railroad 
Company,  how.— Hy  Acts  Ga.,  1870,  p.  360,  this  company  was  granted 
the  power  to  consolidate  its  stock  and  franchises  with  the  Memphis 
Branch  Raih-oad  Company.  For  terms  and  conditions,  see  act  itself  in 


NASHVILLE,    CHATTANOOGA    4    ST.    LOUIS    RAILWAY.         383 

next  chapter.  The  Memphis  Branch  Railroad  Company  was  chartered 
by  Act  <ia.,  1868.  p.  Ill,  approved  October  10,  1808,  to  build  a  railroad 
from  Home,  in  Floyd  county,  to  the  Alabama  line,  on  the  north  side  of 
the  Coosa  river,  in  the  direction  of  (Jadsden,  Ala. 

2.  May  contract  with  certain  railroad  companies  as  to  joint  use  of 
right  of  way.-  -By  Acts  (Ja.,  1872,  p.  305,  this  company  was  granted  power 
to  contract  with  the  Selma,  Home  »fe  Dalton  Railroad  Company,  the  Mem- 
phis Itranch  Railroad  Company,  the  North  A  South  Railroad  Company, 
Lookout  Mountain  Railroad  Company,  and  any  other  railroad  connect- 
ing or  to  be  connected  at  Rome,  for  a  common  use  of  railroad  yards,  right 
of  way,  etc.     See  act  itself  in  next  chapter. 

3.  General  powers  (enlarged);  may  sell  road,  franchises,  etc. — On 
December  30,  ISSHi,  the  Rome  Railroad  Company  filed  a  petition  with  the 
secretary  of  state  of  Georgia,  under  the  Actj  of  Cia.,  18'.»3,  p.  81),  authoriz- 
ing it  to  be  done,  asking  for  an  amendment  to  its  charter  as  therein  pro- 
vided, and,  on  the  same  day.  the  petition  was  granted,  and  all  the  powers 
and  privileges  of  sections  13  and  18  of  an  act  of  (Ja..  1892,  p.  37,  approved 
December  17.  185)2,  was  conferred  upon  it.    The  powers  contained  in  sec- 
tion 13  were  a.s  follows: 

"SEC.  13.  Beit  further  enacted,  That  said  railroad  compan3'  shall  have 
the  power,  and  authority  is  hereby  granted,  to  make  and  enter  into  con- 
tracts with  any  railroad  company  which  has  constructed,  or  shall  here- 
after construct,  any  railroad  within  this  state,  or  any  other  state,  as 
will  enable  said  company  to  run  their  said  roads  in  connection  with  each 
other  and  merge  their  stocks,  or  to  consolidate  with  any  such  company, 
within  or  without  this  state,  or  to  lease  or  purchase  the  stock  and  prop- 
erty of  any  other  such  company,  and  hold,  use.  and  occupy  the  same 
in  such  manner  as  they  may  deem  most  beneficial  to  their  interest; 
I'rnrhled,  That  no  railroad  shall  purchase  a  competing  line  of  rail- 
road, or  enter  into  any  contract  with  a  competing  line  of  railroa'd.  cal- 
culated to  defeat  or  lessen  competition  in  this  state,  and  any  violation 
of  this  section  shall  subject  the  corporation  to  all  the  penalties  incident 
to  such  violation  of  the  law.  It  shall  be  lawful  for  such  companies  to 
build,  construct,  and  run,  as  part  of  their  corporate  property,  such  num- 
ber of  steamboats  or  vessels  as  they  shall  deem  necessary  to  facilitate 
the  business  operations  of  such  company  or  companies.  That  the  secre- 
tary, or  other  officer  or  agent  of  said  company,  who,  by  this  act  or 
by-laws  of  said  company,  is  made  the  custodian  of  the  books,  records, 
papers,  or  other  property  of  said  company,  shall  keep  the  same  in  his 
possession  at  all  times  during  business  hours,  have  the  same  ready  to  be 
exhibited  to  any  officer,  director,  or  committee  of  stockholders  of  said 
company,  and  furnish  them,  or  either  of  them,  with  transcripts  from 
the  records  of  proceedings  of  the  board  of  directors  of  said  company, 
under  his  official  hand  and  seal,  on  the  payment  to  him  of  the  same  fee 
as  that  provided  by  law  for  the  clerk  of  the  court  for  transcripts  from 
the  records  of  his  office:  and  the  said  secretary  shall,  on  resigning  his 
office,  or  otherwise  vacating  the  same,  make  over  all  such  books,  rec- 
ords, papers,  and  all  other  property  of  the  corporation  which  are  in  his 
possession,  to  his  successor  in  office,  or  when  no  successor  has  been 
appointed  or  elected,  to  the  board  of  directors,  if  any.  or  to  the  person 
or  persons  appointed  by  the  stockholders  of  such  company." 

The  powers,  as  contained  in  section  18.  were  as  follows:  "SKC.  18.  lie 
It  further  cnnctctl.  That  any  railroad  company  incorporated  under  the 
provisions  of  this  act  shall  have  full  power  and  authority  to  sell,  lease, 
assign,  or  transfer  its  stock,  property,  and  franchises  to,  or  to  consoli- 
date the  same  with,  those  of  any  other  railroad  company  incorporated 
under  the  laws  of  this  or  any  other  state  or  of  the  United  States  whose 
railroad,  within  or  without  this  state,  shall  connect  with  or  form  :i  con- 
t  innmis  line  with  the  railroad  of  the  company  incorporated  under  this 


384  ORIGINAL    CHARTER    OF    THE    ROME    BRANCH 

law  upon  such  terms  as  may  be  agreed  upon;  and,  conversely,  any  such 
corporation  organized  under  the  provisions  of  this  act  may  purchase, 
lease,  consolidate  with,  absorb  and  merge  into  itself  the  stock,  prop- 
erty, and  franchises  of  any  other  railroad  company  incorporated  under 
the  laws  of  this  or  any  other  state  or  the  United  States  whose  railroad, 
within  or  without  this  state,  shall  connect  with  or  form  a  continuous 
line  or  system  with  the  railroad  of  such  company  incorporated  under 
this  law  upon  such  terms  as  may  be  agreed  upon.  And  it  shall  be  law- 
ful for  any  railroad  company  or  corporation  now  or  hereafter  formed  by 
the  consolidation  of  one  or  more  railroad  companies  or  corporations  or- 
ganized under  the  laws  of  this  state,  or  under  the  laws  of  this  state  and 
any  other  states,  with  one  or  more  companies  or  corporations  organized 
under  the  laws  of  any  other  state  or  under  the  laws  of  this  and  other 
states,  to  issue  its  bonds  and  stock  as  provided  for  in  this  act,  in  such 
amounts  as  they  may  deem  necessary  for  the  purpose  of  paying  or  ex- 
changing the  same  for  or  retiring  any  bonds  or  stocks  theretofore 
issued  by  either  of  the  said  companies  or  corporations  so  merged,  pur- 
chased, or  consolidated,  or  for  any  other  purpose,  and  to  the  amount 
authorized  by  the  laws  of  the  state  under  which  either  of  said  companies 
or  corporations  so  consolidated  was  organized,  and  to  secure  the  same, 
in  case  of  bonds,  by  mortgages  or  trust  deeds  upon  its  real  or  personal 
property,  franchises,  rights  and  privileges,  whether  within  or  without 
this  state;  Provided,  That  no  railroad  company  shall  make  any  contra'ct 
under  the  provisions  of  this  section  with  any  other  railroad  company 
which  is  a  competing  line  that  is  calculated  to  defeat  or  lessen  competi- 
tion in  this  state  or  to  encourage  monopoly." 

SEC.  3.  Capital  stock,  route,  books  opened.—^  it  further 

enacted  by  the  authority  aforesaid,  That  it  shall  and  may  be  law- 
ful for  the  said  company  to  create  a  stock  of  $500,000,  or  such 
less  sum  as  the  company  may  deem  necessary,  to  be  increased, 
if  proper,  one-third,  for  the  purpose  of  carrying  out  all  the  ob- 
jects hereinafter  described,  to  wit:  A  railroad  from  such  point 
of  the  Atlantic  &  Western  Railroad  as  may  be  nearest  the  town 
of  Rome,  situated  at  the  head  of  the  Coosa  river,  to  the  Ala- 
bama line,  passing  along  the  valley  of  the  Coosa  river;  to  locate 
and  construct  and  to  put  into  operation  said  road,  and  to  pre- 
pare the  Coosa  river  by  canals,  dams,  locks,  jetts,  and  all  other 
works  that  may  be  required  for  steam  navigation,  and  to  fur- 
nish the  same  with  a  supply  of  boats;  and  they  are  authorized 
and  empowered  to  cause  books  of  subscription  to  be  opened  in 
such  places  and  in  such  manner  as  they  may  deem  most  con- 
ducive to  effect  the  obtain ment  of  the  stock  required  for  the 
purposes  aforesaid. 

1.  Route. — By  Acts  Ga. .  1845,  p.  145.  the  above  section  was  amended 
so  as  to  authorize  the  company  to  construct  the  road  from  such  point  on 
the  Western  &  Atlantic  Railroad  to  Rome,  in  Floyd  county,  and  by  such 
route  as  may  be  deemed  most  practicable  and  expedient;  and  further 
provided  that  the  company  might  or  might  not  carry  said  road  beyond 


NASHVILLE,    CHATTANOOGA    4    8T.    LOUIS   RAILWAY.         385 

Rome,  as  they  might  deem  proper.  The  act  further  granted  the  com- 
pany until  1850  to  complete  the  road  to  Rome.  See  act  itself  in  next 
chapter. 

2.  Capital  stock. — Ky  Acts  Ga.,  1847,  p.  170,  the  capital  stock  of  this 
company  was  authorized  to  be  8100,000,  in  shares  of  9100  each,  with  power 
to  increase,  after  completion  and  equipment  of  road,  to  an  amount  not 
exceeding  the  actual  cost  of  road  and  outfit.  See  act  itself  iu  next  chapter. 

SEC.  4.  Number  shares  of  stock,  value,  installments.—^/^ 

l»  it  fiirt Iter  e nacted  by  the  authority  aforesaid,  That  the  capital 
stock  of  said  company  shall  consist  of  ten  thousand  shares  of 
$50  each,  but  the  number  of  shares  may  be  increased  one-third; 
and  upon  the  subscription  for  shares  in  said  stock,  the  sub- 
scribers shall  pay  the  sum  of  $5  dollars  upon  each  share  sub- 
scribed for  by  such  subscriber;  Provided,  That  said  company 
may  commence  the  construction  of  their  railroad  and  ooating 
so  soon  as  three  thousand  shall  be  subscribed. 

Value  of  shares. — By  Acts  Ga.,  1847,  p.  170.  the  value  of  the  shares  of 
stock  was  authorized  to  be  8100.  See  act  itself  in  next  chapter. 

SEC.  5.  Road  to  be  completed,  when ;  freight  and  passen- 
ger Charges. — Be  it  further  enacted  by  tlw  authority  aforesaid, 
That  the  said  company  shall  be  allowed  the  term  of  eight  years, 
from  the  passage  of  this  act,  to  complete  said  railroad  to  the 
navigable  waters  of  the  Coosa,  with  the  improvements  of  that 
river  for  steam  navigation,  and  an  additional  term  of  - 
years  for  the  completion  of  the  railroad  to  the  Alabama  line; 
and  said  company  shall  be  entitled  and  authorized  to  demand 
and  collect  freights  and  tolls  on  all  goods,  wares,  and  merchan- 
dise or  productions  of  the  country  transported  over  said  road 
and  upon  the  said  river,  and  also  for  passengers  on  the  same, 
as  the  board  of  directors  of  said  company  may  tind  is  necessary 
to  adopt,  from  time  to  time,  in  their  regulations  of  tolls;  Pro- 
vided, That  during  any  twelve  months  together  the  net  amount 
shall  not  exceed  twenty  per  cent,  per  annum  upon  the  amount 
of  capital  actually  paid  in,  or  the  amount  actually  expended  in 
making,  constructing,  and  keeping  in  good  repair  said  railroad 
and  steamboat  communication. 

1.  Time  to  complete. — lly  Acts  Ga.,  1845,  p.   145,  the  company  was 
granted  until  1850  to  complete  the  road  to  Rome.     See  act  itself  in  next 
chapter. 

2.  Freight  charges.— See  70  Ga.,  604;  50  Ga.,  304. 

25 


386  ORIGINAL    CHARTER    OF    THE    ROME    BRANCH 

SEC.  6.  Land  for  right  of  way,  how  acquired;  value,  how 

assessed. — Be  it  further  enacted  by  tlie  authority  aforesaid, 
That  the  board  of  directors  of  the  aforesaid  company  shall 
have  power  to  select  and  take  or  receive,  as  donation,  such 
strip  or  strips  of  land  between  the  points  selected  for  said  road, 
and  of  such  width  as  they  may  deem  necessary  for  the  construc- 
tion of  said  road;  and  in  all  cases  in  which  disagreement  may 
arise  between  individuals  or  incorporations  and  the  board  of 
directors  of  the  aforesaid  company,  as  to  the  right  of  way  or 
damages  to  property  on  such  strip  or  strips  of  land,  it  may 
and  shall  be  lawful  for  the  company  to  appoint  a  competent 
and  disinterested  freeholder,  and  the  owner  or  owners  of  such 
land  shall  also  appoint  one  competent  and  disinterested  free- 
holder, both  of  whom  shall  be  sworn  by  some  judicial  officer 
to  do  equal  justice  between  the  parties,  and  they  shall  then  pro- 
ceed upon  the  premises  as  a  committee  of  arbitration  and  ap- 
praisement, and  they  shall  make,  in  writing,  their  award  of 
valuation  of  damages,  to  be  approved  and  signed  by  them, 
which  amount  the  said  company  shall  pay  unto  the  owner  or 
owners  of  such  strip  or  strips  of  land,  and  the  fee  simple  right 
thereof  shall  vest  in  the  company  forever;  and  the  award  shall 
be  recorded  in  the  office  of  the  clerk  of  the  supreme  court  in 
the  county,  in  the  same  manner  as  deeds.  In  case  the  owner 
or  owners  of  such  strip  or  strips  of  land  shall  refuse  on  their 
part  to  appoint  a  referee,  then,  and  in  that  event,  the  inferior 
court,  or  a  majority  of  the  court,  of  the  county  in  which  such 
strip  or  strips  of  land  may  lie,  shall  appoint  a  referee;  and  in 
case  the  committee  aforesaid,  in  either  way  appointed,  cannot 
agree  upon  the  value  of  right  of  way  and  the  amount  of  dam- 
ages, they  shall  choose  a  third  man,  who  shall  be  sworn  as 
aforesaid,  and  be  added  to  said  committee;  and  in  case  either 
party  be  not  satisfied  with  the  decision  of  the  arbitrators,  they 
may  appeal  to  a  special  jury  in  the  county  where  the  land  may 
lie,  which  appeal  shall  be  tried  before  the  supreme  court  of  the 
county  at  its  first  term  after  the  appeal  is  made,  and  the  decis- 
ion of  this  special  jury  shall  vest  in  the  railroad  company  afore- 
said the  fee  simple  of  the  strip  or  strips  of  land  in  question, 


NASHVILLE,    CHATTANOOGA    4    ST.    LOUIS   RAILWAY.         387 

and  the  other  party  a  judgment  for  the  value  thereof  thus  as- 
certained and  determined. 

1.  Width  of  right  of  way. — Under  this  section,  only  the  number  of 
feet  actually  taken  or  donated  at  each  particular  potnt  can  now  consti- 
tute the  width  of  right  of  way,  and,  to  determine  which,  the  records  on 
file  in  each  county  through  which  the  road  runs  must  be  examined.    The 
deed  to  the  road,  however,  which  is  set  out  in  the  next  chapter,  insures 
at  least  fifty  feet  throughout  its  entire  line.     See  27  Ga..  477,  for  right  of 
company  to  enjoin  building  on  right  of  way. 

2.  Successive  appropriations. — For  a  discussion  of  the  right  to  make 
successive  appropriations,   see  Eminent  Drmiudi,  Right  of  Way,  herein. 
Refer  to  index. 

3.  The  right  to  condemn  land  for  right  of  way,  once  exercised,  is  ex- 
hausted, and  not  afterwards  enlarged.     71  Ga.,  591.     Railways,  under 
the  general  law,  may  take  land  outside  of  right  of  way  for  obtaining 
sand,  etc.     97  Ga.,  107. 

SEC.  7.  Public  roads  not  to  be  obstructed;  other  roads 
within  twenty  miles  prohibited;  capital  stock  exempt  from 

tax. — Be  it  farther  enacted  by  the  authority  aforemid.  That 
the  said  company  shall  not  obstruct  any  public  road  which  may 
be  crossed  by  their  road;  that  no  other  railroad  shall  be  here- 
after i>ermiUed  to  be  constructed  within  twenty  miles  of  the 
route  the  aforesaid  company  may  select,  and  that  its  stock  shall 
not  be  liable  to  any  tax,  duty,  or  imposition  whatever,  unless 
such,  and  no  more,  as  is  now  in  bank  of  this  state. 

1.  Other  roads  within  twenty  miles. — The  above  clause  prohibiting 
the  building  of  other  railways  within   twenty  miles  of  this  was  valid. 
96  Ga.,  562.    See,  also,  70  Ga.,  694;  86  Ga.,  83;  see.  also,  notes  to  sec.   13 
of  the  charter  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  ch. 
1,  herein.     It  is  probable,  however,  that  this  section  is  now  impaired,  if 
not  invalidated,  by  the  amendment  granted  by  the  secretary  of  state, 
under  the  Acts  of  Georgia,  1893,  p.  89,  approved  December  20.  1893,  au- 
thorizing the  company,  among  other  things,  to  sell  its  road,   for.  by 
accepting  the  provisions  of  the  act,  the  company  may  have  brought 
itself  within  the  provisions  of  the  constitution  of  Georgia  of  1877.  which 
enables  the  state  to  amend  all  charters  at  pleasure. 

2.  Exemption  from  taxation. — See  63  Ga.,  473,  for  supreme  court 
construction  of  this.     This  exemption,  however,  was  also  doubtless  lost 
by  applying  for  and  obtaining  the  amendment  from  the  secretary  of 
state,  as  explained  in  the  above  note. 

SEC.  8.  Directors,  how  chosen,  qualification,  voting,  pow- 
ers.— Be  it  further  enacted  by  the  authority  aforexaid,  That  the 
affairs  of  the  company  shall  be  under  the  management  of  a 
board  of  directors.  This  Ixmrd  shall  l>e  elected  by  the  stock- 
holders from  their  own  body.  No  stockholder  of  the  company 
shall  be  eligible  as  a  director  unless  he  holds  fifty  shares  of  the 


388  ORIGINAL    CHARTER    OF    THE    ROME    BRANCH 

stock,  either  in  his  own  name  or  as  administrator,  executor,  or 
guardian.*  In  all  elections  the  stockholders  shall  vote  either 
in  person  or  by  proxy,  duly  authorized  according  to  their 
shares,  each  stockholder  being  entitled  to  one  vote  for  each 
share  held  by  him.  No  share,  however,  shall  entitle  the  holder 
to  a  vote  unless  the  same  has  been  transferred  bona  fide  on  the 
books  of  this  company  at  least  three  months  before  the  election. 
The  directors  shall  elect  a  president  from  their  own  body,  and 
the  president  and  directors  shall  receive  such  compensation  for 
their  services  as  may  be  allowed  by  the  owners  and  lawful  rep- 
resentatives of  a  majority  of  shares  of  the  capital  stock  of  the 
institution,  to  be  determined  at  the  regular  annual  meeting  of 
the  stockholders  and  before  the  annual  election  of  the  directors. 
The  board  of  directors  shall  be  competent  at  all  times  to  call  an 
extra  meeting  of  the  stockholders,  when  by  them  deemed  nec- 
essary, and  shall  have  power  to  appoint  and  fix  the  salaries  of 
their  engineers,  of  a  secretary  and  treasurer,  and  as  manyagents 
afld  clerks  and  laborers  as  they  deem  necessary  and  expedient 
for  the  business  of  said  company. 

1.  Qualification  of  directors. — By  Acts  1847,  p.  170,  sec.  2,  this  section 
was  amended  so  that,  "to  qualify  a  stockholder  for  a  director,  he  shall 
hold  twenty  shares  of  stock  in  said  company  instead  of  fifty."     See  act 
itself  in  next  chapter. 

2.  *  By  Acts  Ga.,  1866,  p.  128,  the  above  section  was  amended  so  as  to 
read  after  the  words  ''or  as  administrator,  executor,  or  guardian,"  as 
follows:  ''Or  as  administrator,  executor,  g-uardian,  or  trustee." 

SEC.  9.  Money  deposited,  installments.— And  be  it  further 

enacted  by  the  authority  aforesaid,  That  until  a  board  of  directors 
shall  be  organized,  the  amounts  received  on  subscription  for 
stock  shall  be  deposited  by  the  persons  receiving  such  in  the 
Western  Bank  of  Georgia,  at  Rome.  The  board  shall  have 
power  from  time  to  time  to  call  in  such  installments  on  the 
subscription  as  they  may  deem  necessary  for  the  progress  and 
execution  of  the  work,  first  giving  to  the  stockholders,  sixty 
days  previous  to  the  time  of  payment  of  such  installment,  no- 
tice in  the  Georgia  Pioneer,  published  in  Cassville,  and  in  one 
of  the  public  gazettes  of  Milledgeville;  and  in  case  any  stock- 
holder refuses  to  pay  the  installment  required  when  thus  de- 
manded, the  board  shall  have  power  to  declare  such  shares  of 


NASHVILLE,    CHATTANOOGA    4    ST.    LOUIS    RAILWAY.         389 

stock  forfeited  to  the  use  and  benefit  of  the  company.  The 
party  in  default  shall,  however,  have  the  right  to  apj>eal  to  the 
stockholders  at  their  next  regular  meeting  thereafter,  and  by 
consent  of  the  owners  and  representatives  of  two-thirds  of  the 
capital  stock  of  the  institution,  the  previous  installments  which 
may  have  been  paid  upon  the  shares,  offered  by  the  board  for 
re-subscription,  as  if  the  same  had  never  been  subscribed  for. 

SEC.  10.  Certificates  of  stock,  annual  elections,  powers  of 

directors. — And  be  it  further  enacted  by  tJw  authority  aforexaid, 
That  the  persons  authorized  by  this  act  to  raise  the  capital 
stock  of  said  company,  or  their  authorized  agents,  shall  issue 
certificates  of  stock  to  the  subscribers  at  the  time  of  subscribing, 
which  may  be  exchanged  for  the  certificates  of  the  secretary 
and  treasurer  after  the  board  of  directors  shall  be  organized, 
and  authority  given  them  for  that  purpose;  and  the  evidences 
of  debt  of  said  company  shall  be  binding  only  on  the  funds 
of  said  company  when  signed  by  the  president  and  attested  by 
the  secretary  and  treasurer.  The  board  of  directors  shall  be 
elected  annually  and  shall  have  power  to  fill  vacancies  in  their 
own  body;  shall  report  annually  on  the  state  of  the  company 
and  its  affairs;  but  if  the  day  of  annual  election  should  pass 
without  any  election  of  directors,  the  said  corporation  shall  not 
thereby  be  dissolved,  but  it  shall  be  lawful  on  another  day  to 
hold  and  make  such  election  in  such  manner  as  shall  be  pre- 
scribed by  the  by-laws.  A  book  of  minutes  of  the  proceedings 
of  the  stockholders  and  of  the  directors  shall  be  kept  by  the 
secretary  and  treasurer,  which,  together  with  all  of  the  books 
of  the  said  company,  shall  be  subject  to  the  inspection  of  the 
stockholders  at  every  meeting. 

SEC.  11.  Company  a  common  carrier;  powers.— And  be  it 

further  enacted  by  the  authority  aforesaid,  That  the  company 
aforesaid  shall  be  deemed  a  common  carrier  as  respects  all  goods, 
wares,  merchandise,  and  produce  intrusted  to  them  for  trans- 
portation, and  shall  have  full  power  and  authority  to  do  and 
perform  all  and  every  corporate  acts  as  are  permitted  or  al- 
lowed to  other  companies  incorporated  for  similar  purposes. 
(Acts  Ga.,  1839,  p.  105;  assented  to  December  21,  1839.) 


390  DEED    TO    ROME    BRANCH 


CHAPTER  XXXIII. 

DEED   TO   AND   ACTS   OF  GEORGIA    RELATING  TO  ROME  RAIL- 
ROAD AND  AMENDMENTS  TO  CHARTER  OF. 

DEED. 

ROME  RAILROAD  COMPANY   } 

TO — Deed.  V  State  of  Georgia,  Floyd  County. 

N.,  C.  &  ST.  L.  RAILWAY.  ) 

This  indenture,  made  and  entered  into  this,  the  thirty-first 
day  of  December,  1896,  by  and  between  the  Rome  Railroad 
Company,  a  corporation  duly  incorporated  under  the  laws  of 
the  State  of  Georgia,  party  of  the  first  part,  and  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  a  corporation  duly  incorpo- 
rated under  the  laws  of  the  State  of  Tennessee,  and  with  cor- 
porate rights  in  the  State  of  Georgia  and  other  states,  party  of 
the  second  part,  witnesseth;  that, 

WHEREAS,  The  said  party  of  the  first  part  is  desirous  of  sell- 
ing its  railroad  and  property  and  franchises  of  every  kind,  and 
said  party  of  the  second  part  is  desirous  of  purchasing  the 
same;  and, 

WHEREAS,  The  said  parties  hereto  are  duly  authorized,  under 
their  respective  charters  and  amendments  thereto,  the  said  party 
of  the  first  part  to  sell,  transfer,  assign,  and  convey,  and  the 
said  party  of  the  second  part  to  purchase,  the  said  railroad  and 
property  and  rights  and  franchises  herein  and  hereby  conveyed; 
and, 

WHEREAS,  The  board  of  directors  of  each  of  the  parties 
hereto  have  duly  authorized  and  agreed  for  their  respective 
companies,  the  party  of  the  first  part  to  sell,  transfer,  assign, 
and  convey,  and  the  party  of  the  second  part  to  purchase,  the 
said  railroad  and  property,  rights  and  franchises,  hereinafter  set 
forth,  in  accordance  with  the  terms  and  upon  the  consideration 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.         391 

of  this  instrument,  and  the  same  has  also  been  duly  agreed  to 
and  sanctioned  by  the  vote  of  all  the  stockholders  of  the  party 
of  the  first  part,  at  a  stockholders'  meeting  held  at  the  princi- 
pal office  of  the  party  of  the  first  part,  at  Rome,  Ga. ,  at  which 
meeting  each  and  every  share  of  the  capital  stock  of  the  said 
party  of  the  first  part  was  present,  and  duly  represented  and 
voted— 

Now,  THEREFORE,  for  and  in  consideration  of  the  premises, 
and  of  the  sum  of  two  hundred  thousand  ($200,000)  dollars, 
in  hand  paid  by  the  party  of  the  second  part,  the  ConsMera. 
receipt  whereof  is  hereby  acknowledged,  the  said  tlon' 
party  of  the  first  part,  hath  granted,  bargained,  sold,  con- 
veyed, released,  assigned,  set  over,  transferred,  and  confirmed, 
and  doth  by  these  presents  grant,  bargain,  sell,  convey,  re- 
lease, assign,  set  over,  transfer,  and  confirm  unto  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  the  party  of  the  sec- 
ond part,  its  successors  and  assigns,  all  and  singular  the  line 
of  railroad  of  the  party  of  the  first  part,  being  about  nineteen 
miles  in  length,  and  extending  from  the  city  of  Rome  in  the 
county  of  Floyd,  in  the  Sta,te  of  Georgia,  through  the  counties 
of  Floyd  and  Bartow,  in  Georgia,  to  the  town  of  Kingston,  in 
said  county  of  Bartow,  in  the  State  of  Georgia.  And  all  side 
tracks,  spur  tracks,  switching  tracks,  and  tracks  of  every  kind 
pertaining  thereto,  together  with  all  the  rights  of  way,  depot 
grounds,  yards,  terminal  properties,  and  rights  and  privileges 
of  every  kind,  its  entire  roadbed,  and  superstructures;  all  de- 
pots, station  houses,  section  houses,  engine  houses,  shops,  and 
all  other  buildings,  and  all  lands  and  easements  of  every  kind; 
also,  all  locomotives,  tenders,  cars,  engines,  tools,  machinery, 
rails,  spikes,  joint  fastenings,  titulars,  ties,  and  material  of 
every  kind,  now  held,  owned,  and  possessed  by  the  party  of  the 
first  part.  Also  all  the  rights,  powers,  privileges,  Frtnchlses 
and  franchises  of  or  belonging  to  the  party  of  the  p*ss- 
first  part,  and  all  other  property  and  rights  of  property  of 
every  kind  and  nature,  now  held  and  owned  by  the  said  party 
of  the  first  part. 

The  roadbed  and  right  of  way  of  the  main  line  of  railroad 


392  DEED    TO    ROME    BRANCH 

above  mentioned  and  herein  conveyed  extends  from  the  western 
line  of  Broad  street,  in  the  city  of  Rome,  at  a  point  between 
the  Hamilton  storehouse  and  the  Etowah  river,  to  the  point  of 
junction  with  the  Western  &  Atlantic  Railroad,  beyond  the  de- 
pot building  in  Kingston,  Georgia.  Said  roadbed  and  main 
width  of  right  ^ne  r^on^  °^  Wa7  being  nowhere  less  than  fifty  feet 
of  way.  m  wjdth,  measuring  from  the  middle  of  the  main 

line  track,  a  distance  of  twenty-five  feet  on  each  side  thereof. 
And  the  said  roadbed  and  right  of  way  being  at  many  places 
along  the  line  very  much  wider  than  fifty  feet. 

Also  the  following  real  estate,  to  wit :  All  that  tract  of  land, 
situated,  lying,  and  being  in  the  lower  portion  of  the  city  of 
Rome,  in  Floyd  county,  Georgia,  and  on  the  Etowah  river, 
between  the  following  points  on  said  river,  to  wit :  between 
the  public  county  iron  bridge,  which  crosses  the  said  river  at 
the  foot  of  Broad  street,  and  the  wooden  freight  bridge  of  the 
East  Tennessee,  Virginia  &  Georgia  Railway  Company  (now 
the  Southern  Railway  Company),  which  bridge  crosses  said 
Etowah  river  above  the  mouth  of  Silver  creek,  and  next  above 
the  iron  bridge  of  the  Chattanooga,  Rome  &  Columbus  Rail- 
road Company,  said  tract  of  land  being  bounded  on  one  side 
by  said  Etowah  river,  as  above  mentioned,  and  at  low  water 
mark  along  said  river  between  the  two  points  or  bridges  above 
named,  and  bounded  on  the  northwesterly  side  by  Broad  street 
bridge  and  the  apron  and  approach  to  said  bridge  and  by  Broad 
street ;  and  bounded  on  the  northerly  side  by  First  avenue 
(formerly  South  street),  as  far  along  said  street  as  to  the  prop- 
erty of  the  East  Tennessee,  Virginia  &  Georgia  Railway  Com- 
pany (now  the  Southern  Railway  Company),  which  is  a  narrow 
strip  of  land  adjacent  to  the  property  known  as  the  Rome  Com- 
press property,  and  bounded  on  the  easterly  side  by  the  above 
named  narrow  strip  of  land,  owned  by  said  Southern  Railway 
Company  (formerly  the  East  Tennessee,  Virginia  &  Georgia 
Railroad  Company),  said  strip  of  land  running  from  First  ave- 
nue along  around  the  Rome  Compress  property,  and  across  the 
foot  of  East  Second  street  (formerly  Franklin  street),  and 
along  by  the  freight  depot  of  the  Southern  Railway  Company 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         393 

(formerly  freight  depot  of  East  Tennessee,  Virginia  &  Georgia 
Railroad  Company),  and  across  the  foot  of  East  Third  street 
(formerly  Alpine  street;,  and  then  beyond  said  East  Third 
street  (formerly  Alpine  street)  along  a  line  twenty-five  feet 
from  the  center  of  the  main  line  track  of  the  Rome  Railroad 
Company  to  a  railroad  track  of  the  Southern  Railway  Com- 
pany (formerly  East  Tennessee,  Virginia  &  Georgia  Railroad 
Company),  which  track  crosses  the  main  line  of  the  Rome  Rail- 
road Company,  beyond  the  turntable  of  the  Rome  Railroad 
Company,  and  between  said  turntable  and  the  Rome  Oil  Mills, 
then  along  the  said  track  of  the  Southern  Railway  Company  to 
the  wooden  freight  bridge  of  the  Southern  Railway  (formerly 
East  Tennessee,  Virginia  &  Georgia  Railway),  where  said 
bridge  crosses  the  Etowah  river,  said  tract  of  land  comprising 
and  including  the  properties  known  as  the  Rome  Railroad  depots 
and  platforms,  and  grounds,  dray  yards  and  switching  yards; 
also  the  lands  known  as  the  Noble  and  Patton  properties,  and 
other  lands  of  the  Rome  Railroad  Company,  adjacent  and  con- 
taining about  eleven  (11)  acres,  more  or  less,  and  various  par- 
cels thereof,  being  partly  described  in  the  following  deeds,  to 
wit:  The  deed  of  Alfred  Shorter  to  the  Memphis  Branch  Rail- 
road &  Steamboat  Company  of  Georgia,  dated  April  2,  1849, 
and  recorded  in  book  F,  page  402,  of  deeds,  in  Floyd  county; 
also  the  deed  of  Alfred  Shorter  to  the  Rome  Railroad  Company, 
dated  May  1,  1866,  and  recorded  in  book  P,  of  deeds,  pages 
302,  303,  of  Floyd  county  records;  also  the  deed  and  agree- 
ment between  the  East  Tennessee,  Virginia  &  Georgia  Railroad 
Company  and  the  Rome  Railroad  Company,  dated  May  29, 
1884,  and  recorded  in  book  EE  of  deeds,  in  Floyd  county,  page 
310;  also  the  deed  of  J.  W.  Noble  et  al.  to  the  Rome  Railroad 
Company,  dated  August  29,  1895,  and  recorded  in  book  AAA 
of  deeds,  page  449,  of  Floyd  county  records. 

Also  that  jx>rtion  of  the  following  tract  of  land,  not  already 
included  arid  descril>ed  in  the  tract  of  eleven  (11)  acres,  above 
set  forth,  to  wit:  All  that  tract  or  parcel  of  land  lying  in  the 
city  of  Rome,  Floyd  county,  Georgia,  known  as  the  "  Turn- 
table "  of  the  Rome  Railroad  Company,  and  the  land  adjacent 


394  DEED    TO    ROME    BRANCH 

thereto,  and  described  in  a  deed  from  Alfred  Shorter  to  the 
Rome  Railroad  Company,  dated  May  26,  1879,  and  recorded 
in  book  Z  of  deeds,  p.  515,  of  Floyd  county  records,  and  con- 
taining about  one-sixth  (j)  of  an  acre,  more  or  less.  Also 
the  following  tract  of  land,  west  of  Broad  street,  in  the  city  of 
Rome,  Floyd  county,  Ga.,  to  wit:  A  strip  of  land  fronting  on 
Broad  street,  and  lying  between  the  railroad  track  now  used  as 
the  main  line  of  the  Chattanooga,  Rome  &  Columbus  Railroad 
Company  and  the  Hamilton  Storehouse  &  Warehouse,  together 
with  the  side  track  now  located  on  said  land,  said  strip  of  land 
being  twenty-five  (25)  feet  wide,  measuring  from  the  center  of 
the  main  line  track  and  running  from  Broad  street  back  to  the 
street  in  the  rear  that  leads  down  to  the  steamboat  wharf. 

Also  the  following  real  estate,  to  wit:  An  undivided  one-half 
interest  in  the  land  known  as  the  river  depot  and  steamboat 
wharf  property  situated  at  the  junction  of  the  Etowah  and 
Oostanaula  rivers,  and  at  the  head  of  the  Coosa  river,  in  the 
city  of  Rome,  in  Floyd  county,  Georgia,  together  with  the 
right  of  way  for  drays,  back  of  what  was  formerly  known  as 
the  cotton  press,  said  land  being  also  partly  described  in  a  deed 
made  by  C.  D.  Forsyth  to  the  Rome  Railroad  Company,  dated 
April  11,  1882,  and  lying  between  the  track  used  as  the  main 
line  of  the  Chattanooga,  Rome  &  Columbus  Railroad,  west  of 
Broad  street,  on  one  side,  and  the  Etowah  river,  on  the  other 
side. 

Also  an  undivided  half  interest  in  that  tract  or  parcel  of  land 
in  the  city  of  Rome,  Floyd  county,  Georgia,  at  the  end  of 
Broad  street,  between  the  Rome  Railroad  right  of  way  and  the 
Etowah  river,  and  between  the  wharf  property  on  said  river 
and  the  iron  bridge  across  the  Etowah  river,  together  with  all 
the  buildings  and  structures  on  said  land,  said  property  being 
described  in  a  deed  from  J.  M.  Elliott  to  the  Rome  Railroad 
Company,  dated  February  19,  1883;  also  all  the  title,  rights, 
privileges,  and  uses  in  and  to  the  main  line  track  west  of  Broad 
street,  in  the  city  of  Rome,  which  are  now  held  and  owned  by 
the  Rome  Railroad  Company;  also  all  that  tract  of  land  in  the 
town  of  Kingston,  in  Bartow  county,  Georgia,  situated  between 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         395 

the  main  lines  of  the  Koine  Railroad  and  the  Western  &  At- 
lantic Railroad,  and  contained  within  what  is  known  as  the  **  Y," 
including  also  the  land  and  roadbed  upon  which  the  tracks 
are  now  built  and  laid  which  form  and  bound  said  "  Y,"  also 
the  lands  upon  which  the  section  houses  of  the  Rome  Railroad 
are  built,  and  the  adjacent  lands  thereto,  and  all  the  rights  of 
way  and  terminal  properties  of  every  kind  in  the  town  of 
Kingston,  in  said  county  of  Bartow,  now  held,  used,  and  owned 
by  the  Rome  Railroad  Company. 

Also  said  party  of  the  first  part  doth  hereby  assign,  set  over, 
and  transfer  to  said  party  of  the  second  part  the  following  con- 
tracts, to  wit:  The  contract  between  the  Rome  Railroad  Com- 
pany and  the  East  Tennessee,  Virginia  &  Georgia  Railroad 
Company,  contained  and  set  forth  in  the  agreement  and  deed 
of  said  companies,  dated  May  29,  1884,  and  recorded  in  book 
EE  of  deeds,  p.  310,  of  records,  in  Floyd  county,  Georgia; 
the  contract  made  between  the  Rome  Railroad  Company  and 
the  East  Tennessee,  Virginia  &  Georgia  Railroad  Company  and 
T.  F.  Howell,  dated  March  7,  1890;  the  contract  between  the 
Rome  Railroad  Company  and  H.  T.  Inman,  dated  December 
17,  1891;  the  contract  between  the  Rome  Railroad  Company 
and  VanDyke  &  Henley,  dated  December  19,  1891;  also  all 
contracts  with  the  Western  Union  Telegraph  Company  and  with 
the  Southern  Express  Company;  also  all  contracts  with  the 
United  States  Government  for  carrying  the  mail  by  the  party 
of  the  first  part;  also  all  the  rights,  benefits,  privileges,  or  usu- 
fructs of  every  character  which  belong  to  or  might  have  been 
enjoyed  under  the  above  contracts  and  under  all  other  con- 
tracts by  said  party  of  the  first  part. 

To  have  and  to  hold  all  and  singular  the  railroad  and  prem- 
ises, and  properties  and  franchises,  privileges  and  rights  and  con- 
tracts hereinbefore  granted,   bargained,  sold,  con-  Franchlse 
veyed,  released,  assigned,  set  over,  transferred  and  pass 
confirmed,    and  every,  part  and   parcel   thereof,   with  all   the 
appurtenances  in  anywise  thereunto  belonging  and  apj>ertaining, 
unto  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  the  said 
party  of  the  second  part,  its  successors  and  assigns,  to  its  and 


396  DEED    TO    ROME    BRANCH 

their  own  use,  benefit,  and  behoof  forever,  in  fee  simple.  And 
the  said  party  of  the  first  part,  for  itself  and  its  successors, 
doth  hereby  covenant  that  it  hath  good  and  sufficient  title  to 
the  railroad  property,  rights,  and  franchises  herein  and  hereby 
conveyed,  and  the  right  to  convey  the  same,  and  that  the  same 
are  unincumbered,  and  that  it  and  its  successors  will,  and  do 
by  these  presents,  warrant  and  defend  the  same  and  every  part 
thereof  to  the  said  party  of  the  second  part,  its  successors  and 
assigns,  against  the  claims  of  all  persons  whatsoever. 

And  the  said  party  of  the  first  part  doth  also  hereby  cove- 
nant and  agree,  that  it  shall  and  will  at  any  time,  and  from  time 
to  time  hereafter,  upon  request  made,  do,  execute,  and  deliver 
all  such  further  and  other  acts,  deeds,  and  things,  as  shall  be 
reasonably  advised  or  required  to  effectuate  the  intention  of 
these  presents,  to  assure  and  confirm  to  the  said  party  of  the 
second  part,  its  successors  and  assigns,  all  the  property  and 
estate  and  rights,  privileges,  and  franchises,  hereinbefore  de- 
scribed, and  being  intended  to  be  granted  and  conveyed. 

In  witness  whereof,  the  Rome  Railroad  Company,  the  said 
party  of  the  first  part,  pursuant  to  the  orders  and  resolutions 
of  its  convention  of  stockholders  and  its  board  of  directors, 
hath  caused  this  instrument  to  be  signed  by  its  president  and 
attested  by  its  secretary  and  its  corporate  seal  to  be  hereunto 
affixed,  the  day  and  year  first  above  written. 

THE  ROME  RAILROAD  COMPANY. 

[SEAL.]  BY  W.  W.  BROOKES,  President. 

Attest:  THE  ROME  RAILROAD  COMPANY, 

By  J.  H.  AMBROSE,  Secretary  and  Treasurer. 

Signed,  sealed,  and  delivered  by  the  Rome  Railroad  Com- 
pany by  W.  W.  Brookes,  president  of  said  company,  this  the 
thirty-first  day  of  December,  1896,  at  Rome,  Ga.,  in  the  pres- 
ence of  each  of  us.  JOHN  H.  REYNOLDS, 

[SEAL.]  B.  I.  HUGHES,  N.  P.  F.  C.,  Ga. 

Signed,  sealed,  and  delivered  by  the  Rome  Railroad  Com- 
pany by  J.  H.  Ambrose,  secretary  and  treasurer  of  said  com- 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         397 

pany,   this  the  fourth   day  of  January,    1897,   at  Nashville, 
Davidson  county,  Tennessee,  in  the  presence  of  each  of  us. 
Witness:  WM.  B.  SHELTON,  Deputy  Clerk , 

J.  B.  ARMSTRONG, 
[SEAL.]  P.  A.  SHELTON, 

Clerk  County  Court  Davidson  Co.,  Tenn. 

STATE  OF  TENNESSEE,  ) 

Davidson  County.       j 

I,  P.  A.  Shelton,  clerk  of  the  county  court,  do  hereby  cer- 
tify that  the  county  court  of  Davidson  county  is  a  court  of 
record,  with  a  seal  thereto  attached.  I  further  certify  that  J. 
H.  Ambrose,  secretary  and  treasurer  of  the  Rome  Railroad 
Company,  who  is  known  to  me,  personally  appeared  before 
me,  on  this  the  fourth  day  of  January,  1897,  and  signed  and 
executed  the  foregoing  instrument,  in  the  presence  of  J.  B. 
Armstrong  and  myself. 

Witness  my  hand  and  seal  of  said  court  affixed  hereto. 

[SEAL.]  P.  A.  SHELTON, 

Clerk  County  Court  Davidson  Co.,  Tenn. 

The  above  deed  was  registered  in  the  clerk  of  superior  court's  office, 
in  Floyd  county,  in  book  CCC,  of  deeds,  p.  96,  No.  60;  and  in  Hartow 
county,  in  book  GO,  p.  409-414. 

AMENDMENT    TO    CHARTER    OF    ROME    RAIL- 
ROAD   COMPANY  AUTHORIZING  IT 
TO  SELL  ITS  ROAD,  ETC. 

Petition  of  tbe  Rome  Railroad  Company  for  amendments 
to  its  charter. 

To  the  Honorable  the  Secretary  of  State  of  Georgia: 

The  petition  of  the  Rome  Railroad  Company  respectfully 
shows: 

1.  That  it  is  a  railroad  corporation  owning  and  operating  a 
railroad  from  the  city  of  Rome  to  Kingston,  Georgia,  with  its 
principal  office  at  Rome,  Georgia,  and  was  duly  incorporated 
in  the  State  of  Georgia  under  the  act  of  the  general  assembly 
of  said  state,  approved  December  21,  1839,  entitled  "An  act 
to  incorporate  the  Memphis  Branch  Railroad  &  Steamboat 


398         AMENDMENT  TO  CHARTER  ROME  BRANCH 

Company  of  Georgia,"  and  various  subsequent  amendments 
thereto  enacted  by  the  general  assembly  of  said  state,  approved 
on  the  following  dates,  to  wit:  Twenty-ninth  day  of  December, 
1847;  sixteenth  day  of  January,  1850;  twelfth  day  of  Decem- 
ber, 1866;  twenty-fourth  day  of  August,  1872;  and  sixteenth 
day  of  October,  1889;  the  said  last  named  act  of  October  16, 
1889,  however,  never  having  been  accepted  nor  adopted  by  pe- 
titioner as  an  amendment  to  its  charter,  and  the  same  being 
inoperative  and  null  and  void. 

2.  That  petitioner,  the  Rome  Railroad  Company,  desires  an 
amendment  to  its  charter  granting  to  petitioner  the  corporate 
authority  and  power  to  sell  and  convey  its  railroad  and  all  its 
property  and  franchises  to  any  other  railroad  company,  as  now 
is  or  may  hereafter  be  authorized  or  allowed  by  the  provisions 
of  the  constitution  and  laws  of  this  state. 

3.  Petitioner  desires  also  an   amendment  to  its  charter  by 
having  granted  to  petitioner  all  the  powers  and  rights  and  priv- 
ileges granted  to  similar  corporations  set  forth  and  contained 
in  section  13  and  in  section  18  of  the  acts  of  the  general  as- 
semby  of  the  State  of  Georgia,  approved  December  17,  1892, 
and  known  as  the  general  act  for  incorporation  of  railroads, 
etc.,    the   same  being  entitled,    "An  act  to  carry  into  effect 
article  3,   section  7,  paragraph  18,  of  the  constitution  of  this 
state,  in  so  far  as  the  same  relates  to  the  issuing  and  granting 
corporate  powers  and  privileges  to  railroad  companies  by  the 
secretary  of  state;  to  define  the  powers,  rights,  privileges,  im- 
munities, and  liabilities  of  such  railroads;  to  regulate  the  same; 
to  provide  for  the  consolidation  of  the  same;  to  build  branches 
and  make  extensions  thereof;  to  enable  the  same  to  run  naviga- 
tion lines  in  connection  therewith;  to  provide  for  the  purchase 
or  lease  of  one  railroad  by  another;  to  grant  renewals  of  char- 
ters, and  for  other  purposes." 

4.  Petitioner  pays  the  fee  as  by  law  provided,  and  also  files 
herewith,  along  with  this  petition,  and  annexed  thereto,  a  certi- 
fied abstract  from  the  minutes  of  the  Rome  Railroad  Company, 
marked  exhibit  "A,"  showing  that  this  application  for  amend- 
ment has  been  duly  and  legally  authorized  by  all  the  stock- 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         899 

holders  of  the  corporation  at  a  stockholders'  meeting  of  the 
said  Koine  Railroad  Company,  held  at  Rome,  Georgia,  the  prin- 
cipal office  of  the  company,  on  the  twenty-fourth  day  of  De- 
cember, 1896. 

Petitioner  further  shows  that  at  said  meeting,  each  and  every 
share  of  the  capital  stock  of  the  corporation,  to- wit:  2,501T\ 
shares,  was  duly  present  and  represented,  in  person  and  by 
proxy,  and  was  unanimously  voted  for  the  passage  and  adop- 
tion of  the  resolutions  contained  in  the  certified  abstract  from 
the  minutes  hereto  attached  and  marked  exhibit  "A."  Where- 
fore your  petitioner,  the  Rome  Railroad  Company,  having  duly 
complied  with  the  requirements  of  law,  now  hereby  set  forth 
and  certified  its  intention  and  desire  to  obtain  and  adopt  as 
amendments  to  its  charter,  the  corporate  authority,  powers, 
rights,  and  privileges  set  forth  above  in  paragraphs  2  and  3 
of  this  petition,  and  prays  that  a  certificate  may  issue  to  the 
Rome  Railroad  Company  granting  to  it  and  conferring  upon  it 
the  corporate  authority  and  power  to  sell  and  convey  its  rail- 
road and  all  its  property  and  franchises  to  any  other  railroad 
company  as  now  is  or  may  he»eafter  be  authorized  or  allowed 
by  the  provisions  of  the  constitution  and  laws  of  this  state. 

Also  all  the  powers  and  rights  and  privileges  granted  to 
similar  corporations  set  forth  and  contained  in  section  13  and 
in  section  IS  of  the  act  of  the  general  assembly  of  the  State 
of  Georgia,  approved  December  17,  1892,  and  entitled  "An 
act  to  carry  into  effect  article  3,  section  7,  paragraph  18,  of 
the  constitution  of  this  state,  in  so  far  as  the  same  relates  to 
the  issuing  and  granting  corporate  powers  and  privileges  to 
railroad  companies  by  the  secretary  of  state;  to  define  the 
powers,  rights,  privileges,  immunities,  and  liabilities  of  such 
railroads;  to  regulate  the  same;  to  provide  for  the  consolida- 
tion of  the  same;  to  build  branches  and  make  extensions 
thereof;  to  enable  the  same  to  run  navigation  lines  in  connec- 
tion therewith;  to  provide  for  the  purchase  or  lease  of  one 
railroad  by  another;  to  grant  renewals  of  charters,  and  for 
other  purix)ses." 

And  petitioner  prays  that  it  may  thus  acquire  the  corporate 


400         AMENDMENT  TO  CHARTER  ROME  BRANCH 

authority,  powers,  rights,  and  privileges  above  set  forth,  and 
as  by  law  in  such  cases  provided. 

ROME  RAILROAD  COMPANY, 

By  W.  W.  BROOKS,  President. 
Attest:  J.  H.  AMBROSE, 

Secretary  of  Roine  Railroad  Company. 

"EXHIBIT  A'r — STOCKHOLDERS'  MEETING. 

OFFICE   OF    THE 

ROME  RAILROAD  COMPANY, 

ROME,  GA.,  Dec.  24,  1896. 

On  motion,  the  following  resolutions  were  unanimously 
adopted,  the  entire  capital  stock  of  the  company,  to  wit,  2,- 
501TV  shares  being  present  and  represented  in  person  and  by 
proxy,  and  each  and  every  share  being  voted  in  favor  of  the 
adoption  and  passage  of  the  resolutions: 

Resolved,  That  the  Rome  Railroad  Company,  by  the  unani- 
mous vote  of  all  its  stockholders,  this  day  in  convention  assem- 
bled, desires  to  obtain  and  accept  amendments  to  its  charter 
conferring  upon  it  the  corporate  authority  and  powers  to  sell 
and  convey  its  railroad  and  all -its  property  and  franchises  to 
any  other  railway  company  not  repugnant  to  the  provisions  of 
the  constitution  of  this  state.  Also  to  have  granted  to  it  and 
conferred  upon  it  all  the  powers  and  rights  and  privileges 
granted  to  similar  corporations  set  forth  and  contained  in  sec- 
tion 13  and  in  section  18  of  the  act  of  the  general  assembly 
of  the  State  of  Georgia,  approved  December  17,  1892,  and 
known  as  the  general  act  for  incorporation  of  railroads,  etc., 
the  same  being  entitled  '  'An  act  to  carry  into  effect  article  3, 
section  7,  paragraph  18,  of  the  constitution  of  this  state,  in  so 
far  as  the  same  relates  to  the  issuing  and  granting  corporate 
powers  and  privileges  to  railroad  companies  by  the  secretary 
of  state;  to  define  the  powers,  rights,  privileges,  immunities, 
and  liabilities  of  such  railroads;  to  regulate  the  same;  to  pro- 
vide for  the  consolidation  of  the  same;  to  build  branches  and 
make  extensions  thereof;  to  enable  the  same  to  run  navigation 
lines  in  connection  therewith;  to  provide  for  the  purchase  or 
lease  of  one  railroad  by  another;  to  grant  renewals  of  charters, 
and  for  other  purposes." 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         401 

/«'•  solved  further,  That  a  petition  is  hereby  directed  to  be 
filed  to  the  secretary  of  state  of  Georgia,  by  the  president  of 
this  company,  for  and  on  its  behalf,  setting  forth  the  desire  of 
the  Rome  Railroad  Company  to  obtain  and  accept  as  amend- 
ments to  its  charter,  the  authority  and  power  to  sell  and  convey 
its  railroad  and  all  its  property  and  franchises  to  any  other 
railroad  company  not  repugnant  to  the  provisions  of  the  consti- 
tution of  this  state.  Also,  to  obtain  all  the  powers,  rights,  and 
privileges  set  forth  and  contained  in  sections  13  and  18  of  the 
above  named  act,  approved  December  17,  1892,  and  praying 
for  the  issuance  of  the  necessary  certificate  to  the  Rome  Rail- 
road Company  granting  the  desired  amendments  and  conferring 
upon  it  the  authority  and  powers  asked  for;  and  the  said  pres- 
ident is  hereby  specially  directed  and  empowered  to  take  all 
necessary  steps  to  carry  these  resolutions  into  effect  and  to  ob- 
tain the  desired  amendments  to  the  charter  of  this  company. 

I,  J.  H.  Ambrose,  secretary  of  the  Rome  Railroad  Company, 
do  hereby  certify  that  the  foregoing  is  a  true  copy  of  resolu- 
tions adopted  at  a  meeting  of  the  stockholders  of  the  Rome 
Railroad  Company,  held  at  Rome,  Georgia,  on  the  twenty- 
fourth  day  of  December,  1896,  and  that  the  above  is  a  true  and 
correct  abstract  from  the  minutes  of  said  stockholders'  meeting. 

In  witness  whereof,  I  have  hereunto  affixed  my  official  sig- 
nature and  attached  the  seal  of  the  company,  this  twenty-sixth 
day  of  December,  1896.  J.  H.  AMBROSE, 

[SEAL.]  Serfy  Rome  Railroad  Company. 

OFFICE  OF 
SECRETARY  OF  STATE, 

ATLANTA,  GA. 

Filed  December  30,  1896.     Recorded  February  1,  1897. 

H.  W.  THOMAS,  Clerk. 

STATE  OF  GEOBOIA, 
OFFICE  OF  SECRETARY  OF  STATE, 

ATLANTA. 
To  Whom  it  May  Concern — Greeting: 

The  Rome  Railroad  Company,  a  corporation  created  by  an 
act  of  the  general  assembly  of  this  state,  approved  December 
21,  1839,  and  acts  amendatory  thereof,  approved  January  16, 
26 


402         AMENDMENT  TO  CHARTER  ROME  BRANCH 

1850,  December  12,  1866,  and  August  24,  1872,  having  peti- 
tioned for  an  amendment  of  the  charter  of  said  corporation,  in 
terms  of  the  law,  in  such  cases  made  and  provided;  the  cor- 
porate powers  and  privileges  set  out  in  the  thirteenth  and  eigh- 
teenth sections  of  an  act  approved  December  17,  1892,  entitled 
"An  act  to  carry  into  effect  article  3,  section  7,  paragraph  18, 
of  the  constitution  of  this  state,"  etc.  (also  such  power  and  au- 
thority to  sell  and  convey  its  railroad  and  all  of  its  property 
and  franchises  to  any  other  railroad  company  as  now  is  or  may 
hereafter  be  authorized  or  allowed  by  the  constitution  and  laws 
of  this  state),  providing  for  the  grant  of  corporate  powers  and 
privileges  by  the  secretary  of  state  to  railroad  companies,  are 
hereby  conferred  upon  the  said  Rome  Railroad  Company. 

Witness  my  hand  and  the  seal  of  this  state,  this  thirtieth  day 
of  December,  1896.  ALLEN  D.  CANDLER, 

Secretary  of  State. 

1.  The  powers  and  privileges  contained  in  sections  13  and  18  of  the 
act  approved  December  17,  1892,  above  referred  to,  are  fully  set  out 
in  note  3  to  section  2  of  the  charter  of  the  Rome  Railroad  Company  in 
preceding1  chapter. 

2.  The  petition  and  amendment  above  set  out  are  registered  in  the 
secretary  of  state's  office  in  Atlanta,  Ga. 

Charter  amended;  route;  time  for  completing  road  extended. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  State  of  Georgia  in  General  Assembly  met,  and  it  is  hereby 
enacted  by  the  authority  of  the  same,  That  the  railroad  author- 
ized and  directed  by  the  third  section  of  said  act,  shall  be  con- 
structed from  such  point  on  the  Western  &  Atlantic  Railroad, 
to  Rome,  in  Floyd  county,  and  by  such  route  as  may  be  deemed 
most  practicable  and  expedient;  and  that  said  company  may  or 
may  not  carry  said  road  beyond  Rome,  as  they  may  deem 
proper.  And  that  said  company  shall  have  until  the  year  1850 
for  the  completion  of  said  road  to  Rome.  (Acts  Ga.,  1845,  p. 
145;  approved  December  29,  1845.) 

Charter  amended ;  capital  stock  increased ;  value  of  shares ; 
qualification  of  directors. 

SECTION  1.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  State  of  Georgia  in  General  Assembly  met,  and 


NASHVILLE,    CHATTANOOGA   A   ST.    LOUIS    RAILWAY.         403 

it  is  hereby  enacted  by  the  authority  of  tfie  same,  That  the  capi- 
tal stock  of  the  Memphis  Branch  Railroad  &  Steamboat  Com- 
pany of  Georgia  shall  be  $100,000  in  shares  of  one  hundred 
dollars  each,  with  power,  after  the  completion  and  equipment 
of  said  road,  to  increase  the  said  capital  stock  to  an  amount 
not  exceeding  the  actual  cost  of  the  road  and  outfit. 

SEC.  2.  Be  it  furtlwr  enacted,  etc.,  That,  to  qualify  a  stock- 
holder for  a  director  in  said  company,  he  shall  hold  twenty 
shares  of  stock  in  said  company,  instead  of  fifty  shares,  as 
provided  by  the  charter  of  which  this  is  amendatory. 

SEC.  3.  And  be  it  further  enacted,  etc.,  That  all  laws  and 
parts  of  laws  militating  against  this  act  be,  and  the  same  are 
hereby,  repealed.  (Acts  Ga.,  1847,  p.  170;  approved  Decem- 
ber 29,  1847.) 

Charter  amended;  name  changed  to  Rome  Railroad  Company. 

WHEREAS,  By  virtue  of  an  act  of  incorporation,  passed  the 
twenty-first  day  of  December,  1839,  and  amendments  thereto, 
a  company,  consisting  of  Wm.  R.  Smith,  Alfred  Shorter,  John 
P.  Eve,  John  P.  King,  Daniel  R.  Mitchell,  and  others,  was 
duly  organized  under  the  corporate  name  and  style  of  the  Mem- 
phis Branch  Railroad  &  Steamboat  Company  of  Georgia: 

SECTION  1.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  State  of  Georgia  in  General  Awembly  met,  and 
it  is  hereby  enacted  by  the  authority  of  the  same,  That  William 
R.  Smith,  Alfred  Shorter,  John  P.  Eve,  J.  W.  M.  Berrien,  John 
P.  King,  and  others,  the  present  stockholders,  and  their  suc- 
cessors and  assigns,  proprietors  of  the  railroad  contract  and 
leading  from  Kingston  to  Rome,  in  this  state,  be  hereafter  known 
and  recognized  as  a  body  politic  and  corporate  by  the  name  and 
style  of  the  Rome  Railroad  Company,  with  all  powers,  privi- 
leges, and  liabilities  contained  in  the  act  aforesaid;  and  all  con- 
tracts or  causes  of  action,  heretofore  or  hereafter  made  accru- 
ing, the  said  company  shall,  by  the  said  name  of  the  Rome 
Railroad  Company,  sue  and  be  sued,  anything  in  the  original 
act  of  incorporation  to  the  contrary  notwithstanding.  (Acts 
Ga.,  1849-50,  p.  243;  approved  January  16,  1850.) 


404         AMENDMENT  TO  CHARTER  ROME  BRANCH 

Charter  amended,  adding  word  "trustee"  in  eighth  section 
of  charter. 

SECTION  1.  Be  it  enacted,  etc.,  That  the  eighth  section  of  an 
act  entitled  "An  act  to  incorporate  the  Memphis  Branch  Railroad 
&  Steamboat  Company  of  the  State  of  Georgia,"  assented  to 
December  21,  1839,  be  so  amended  as  to  read  after  the  words 
"  or  as  administrator,  executor,  or  guardian,"  as  follows:  "Or 
as  administrator,  executor,  guardian,  or  trustee." 

SEC.  2.  Repeals  conflicting  laws.  (Acts  Ga. ,  1866,  p.  128; 
assented  to  December  12,  1866.) 

Charter  amended;  authorized  to  consolidate  with  Memphis 
Branch  Railroad  Company. 

SECTION  1.  Be  it  enacted,  etc.,  That  the  Rome  Railroad  Com- 
pany may,  at  any  time  hereafter,  consolidate  its  stock  and  fran- 
chises with  the  Memphis  Branch  Railroad  Company,  by  and 
with  the  consent  of  the  stockholders  of  both  of  said  companies, 
and,  when  said  consolidation  is  made,  the  consolidated  com- 
pany shall  assume  the  corporate  name  of  ' '  The  Memphis 
Branch  Railroad  Company." 

SEC.  2.  Be  it  further  enacted,  That  all  the  privileges,  rights, 
and  immunities  heretofore  granted,  or  which  may  hereafter  be 
granted,  to  either  of  said  companies  shall  continue  and  apper- 
tain and  belong  to  the  consolidated  company. 

SEC.  3.  Be  it  further  enacted,  That  all  laws  and  parts  of 
laws  militating  against  this  act  be,  and  the  same  are  hereby, 
repealed.  (Acts  Ga.,  1870,  p.  360;  approved  October  27, 
1870.) 

The  Memphis  Branch  Railroad  Company  was  chartered  by  Acts  Ga., 
1868,  p.  Ill,  and  was  also  given  the  power  to  consolidate.  Its  charter 
was  amended  by  Acts  1870,  pp.  337,  338;  Acts  1872,  p.  365,  and  Acts 
1871-2,  p.  196. 

Authorized  to  use  common  tracks,  etc.,  with  certain  roads, 
when  and  where. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the 
State  of  Georgia,  That  the  Rome  Railroad  Company,  the 
Selma,  Rome  &  Dalton  Railroad  Company,  and  the  Memphis 
Branch  Railroad  Company,  or  any  two  of  them,  be,  and  they 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         405 

are  hereby,  authorized  to  use  in  common  the  right  of  way, 
yards,  and  track  upon  the  franchise  heretofore  granted  to  the 
Rome  Railroad  Company,  from  the  junction  of  the  Etowah  and 
Oostanaula  rivers  to  the  point  where  the  track  of  the  Selma, 
Rome  &  Dalton  Railroad,  as  now  laid,  diverges  from  the  track 
of  the  Rome  Railroad,  near  the  northern  or  eastern  limits  of 
the  city  of  Rome,  upon  such  terms  as  the  respective  parties 
have  agreed  or  may  agree  upon  with  the  said  Rome  Railroad 
Company  as  compensation  for  such  joint  use  of  its  franchises, 
and  upon  obtaining  the  assent  of  the  Rome  Railroad  Company 
thereto. 

SEC.  2.  Be  it  further  enacted,  That  each  of  said  companies 
shall  be  liable  to  parties  aggrieved  by  violation  of  contracts  or 
torts  committed  by  it,  and  shall  not  be  liable  in  any  covenant 
or  for  any  damage  or  in  any  tort,  for  the  act  or  acts  or  omis- 
sion of  either  of  the  others  or  their  servants. 

SEC.  3.  Be  it  further  enacted,  That  it  shall  and  may  be  law- 
ful for  the  said  Rome  Railroad  Company  to  make  a  similar 
contract,  with  a  like  effect  in  all  respects,  with  the  North  & 
South  Railroad  Company,  the  Lookout  Mountain  Railroad 
Company,  or  any  other  railroad  connecting  at  Rome,  which 
may  be  hereafter  constructed,  for  a  like  common  use  of  the 
railroad  yard  and  right  of  way,  at  or  near  Rome,  of  said  firs 
named  company,  upon  such  terms  as  may  be  agreed  upon  by 
the  respective  parties  at  interest. 

SEC.  4.  Repeals  conflicting  laws.  (Acts  Ga.,  1872,  p.  365; 
approved  August  24,  1872.) 

OTHKR  ACTS  OF  GEORGIA  RELATING  TO  ROAD. 

1.  Acts  Ga.,   1889,  p.  282,  approved  October   16,   1889,  grants  certain 
rights,  powers,  and  privileges  to  the  company,  but,  by  section  7  of  said 
act,  the  same  was  rendered  void  unless  certain  conditions  were  complied 
with.     The  conditions  were  never  performed,  and  the  act  became  a  nul- 
lity.    It  is  therefore  here  omitted. 

2.  By  Acts  Ga.,  1869,  p.  204,  approved  March  18,  1869.  certain  commis- 
sioners were  appointed  to  negotiate  for  the  purchase  of  this  road  for  the 
State  of  Georgia,  but  no  trade  was  consummated,  and  the  act  is  here 
omitted. 


406  MIDDLE    TENNESSEE    &    ALABAMA    BRANCH 


CHAPTER  XXXIV. 

MIDDLE  TENNESSEE  &  ALABAMA  RAILWAY  COMPANY. 

[FORMERLY  THE  DECATUR,  CHESAPEAKE  &  NEW  ORLEANS  RAILWAY  Co. 

Now  FORMS  EXTENSION  OF  SHELBYVILLE  BRANCH 

SOUTH  INTO  ALABAMA.] 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— On  July  20,  1887,  the  Decatur,  Chesapeake  &  New  Or- 
leans Railway  Company  was  chartered  under  the  general  Acts 
of  Tennessee,  1875,  ch.  142,  to  run  from  the  Alabama  state 
line  to  Gallatin,  Tennessee,  connecting  at  the  line  of  Lincoln 
county  and  the  State  of  Alabama  with  a  railroad  projected  by 
a  corporation  chartered  under  the  general  laws  of  Alabama,  to 
extend  from  Decatur  to  the  said  state  line,  and  which  two  cor- 
porations formed,  in  reality,  the  said  Decatur,  Chesapeake  & 
New  Orleans  Railway  Company.  The  Tennessee  charter  was 
registered  July  28,  1887,  in  the  office  of  the  secretary  of  state 
of  Tennessee,  in  book  F,  p.  157;  in  the  register's  office  of  Lin- 
coln county,  in  trust  deed  book  No.  8,  pp.  22-31.  The  Ala- 
bama charter  was  registered  in  the  office  of  the  secretary  of 
state  of  Alabama,  in  corporate  book  UC,"  pp.  126-129. 

Copies  of  both  the  Tennessee  and  Alabama  charters  may  be  found  fur- 
ther on  in  this  chapter. 

On  June  25,  1880,  the  said  Decatur,  Chesapeake  &  New  Or- 
leans Railway  Company  executed  to  the  American  Loan  & 
Trust  Company  of  New  York,  as  trustee,  a  mortgage  or  deed 
of  trust  known  as  its  first  mortgage,  conveying  its  entire  rail- 
way, properties,  etc.,  to  secure  an  issue  of  $3,000,000  bonds, 
of  which  number  $1,330,000  were  subsequently  issued. 

Default  being  made  in  the  payment  of  the  coupons,  a  bill 
was  filed  by  the  said  trustee  in  the  circuit  court  of  the  United 
States  in  Tennessee  and  Alabama,  to  foreclose  said  mortgage, 
which  suit  was  prosecuted  to  completion  by  the  ' '  State  Trust 
Company  "  as  a  successor  trustee. 


NASHVILLE,    CHATTANOOGA   4    ST.    LOUIS    RAILWAY.         407 

On  November  16,  1892,  a  decree  of  foreclosure  and  sale  was 
entered  in  the  said  circuit  court  of  the  United  States  for  the 
middle  district  of  Tennessee,  at  Nashville,  and  on  November 
23,  1892,  a  similar  one  was  entered  in  the  circuit  court  of  the 
United  States  for  the  northern  district  of  Alabama. 

On  January  2,  1893,  the  railroad,  properties,  etc.,  were  sold 
at  public  auction  in  conformity  with  the  terms  of  the  decree, 
and  were  purchased  by  J.  Edward  Simmons,  Daniel  Lord, 
Garrett  A.  Hobart,  R.  D.  Warren,  Ernest  Coldwell,  John  T. 
Crass,  and  David  Wilcox,  as  trustees,  under  and  in  pursuance 
of  a  certain  plan  of  reorganization  of  the  said  Decatur,  Chesa- 
peake &  New  Orleans  Railway  Company. 

This  sale  was  confirmed  by  decree  of  the  federal  court,  and, 
on  January  7,  1893,  Henry  M.  Doak,  master  commissioner  of 
the  circuit  court  for  the  middle  district  of  Tennessee,  at  Nash- 
ville, executed  a  deed  to  the  said  J.  Edward  Simmons  «l  «/., 
of  the  railroad  properties,  franchises,  rights,  privileges,  etc., 
of  said  Decatur,  Chesapeake  &  New  Orleans  Railway  Company. 
Said  deed  was  registered  in  the  register's  office  of  Bedford 
county,  Tenn.,  February  20,  1893,  in  deed  book  No.  "1,"  p. 
544;  in  Moore  county,  Tenn.,  February  23,  1893,  in  deed  book 
No.  5,  p.  121;  in  Lincoln  county,  Tenn.,  March  11,  1893,  in 
deed  book  "Z,"  p.  581. 

On  January  31,  1893,  the  said  J.  Edward  Simmons  et  al., 
composing  the  reorganization  committee  as  aforesaid,  met  in 
Nashville  for  the  purpose  of  becoming  incorporated  as  the  pur- 
chasers of  the  property  and  franchises  of  said  railroad  com- 
pany, and,  to  this  end,  filed,  on  February  24,  1893,  a  certifi- 
cate in  the  office  of  the  secretary  of  state  of  Tennessee,  under 
the  provisions  of  §  1514  of  the  code  of  Tennessee  (Shannon's), 
and  of  the  Acts  of  Tenn.,  1877,  ch.  12,  sec.  2;  1885,  ch.  84. 

Certificates  for  a  similar  purpose  were  tiled  with  the  secre- 
tary of  state  of  Alabama,  on  March  9,  1893,  under  §  1596  et 
seq.y  of  the  Code  of  Alabama,  1886,  and  §  1181  et  seq.  of  Code 
of  1896. 

Corporations  organized  by  purchasers  succeed  to  franchises  and  powers 
of  old  corporation,  but  as  to  ownership  of  property  and  liabilities,  it  is  a 
new  one.  61  Ala.,  559. 


408  MIDDLE    TENNESSEE    <fe    ALABAMA    BRANCH 

The  name  chosen  for  the  new  corporation  was  "The  Middle 
Tennessee  &  Alabama  Railway  Company." 

On  March  20,  1893,  J.  Edward  Simmons  et  al.  transferred 
and  conveyed  to  the  said  Middle  Tennessee  &  Alabama  Railway 
Company  the  railroad,  properties,  franchises,  rights,  privileges, 
etc.,  so  acquired  by  them.  This  deed  was  registered  in  the 
register's  office  of  Lincoln  county,  on  July  31,  1896,  in  deed 
book  No.  "  D  D,"  pp.  129-134. 

On  December  19,  1893,  the  Middle  Tennessee  &  Alabama 
Railway  Company  executed  a  mortgage  to  secure  $350,000  of 
bonds  on  its  railroad,  right  of  way,  properties,  franchises, 
rights,  privileges,  etc. ,  to  the  State  Trust  Company,  as  trustee. 
The  bonds  so  secured  were  known  as  its  first  mortgage  bonds. 

On  December  — ,  1893,  a  second  mortgage  was  executed  by 
the  company  to  secure  an  issue  of  $750,000  of  bonds,  pledging 
the  same  property,  subject,  nevertheless,  to  the  first  mortgage. 
The  State  Trust  Company  was  again  made  trustee. 

Default  having  been  made  in  the  payment  of  the  coupons  on 
the  foregoing  bonds,  a  foreclosure  bill  was  filed  in  the  circuit 
court  of  the  United  States  for  the  middle  district  of  Tennessee, 
at  Nashville,  and  a  supplemental  bill  filed  January  25,  1897. 
Such  proceedings  were  had  and  entered  that  on  March  8,  1897, 
a  decree  of  sale  was  entered  at  Nashville,  authorizing  the  spe- 
cial master  to  sell  said  railroad  properties,  easements,  rights  of 
way,  franchises,  privileges,  immunities,  etc.  Said  decree  is 
entered  in  minute  book  "BB,"  pp.  122-130,  of  the  United 
States  circuit  court  at  Nashville.  A  decree  of  sale  was  also 
entered  March  25,  1897,  in  the  United  States  circuit  court  for 
the  northern  division  of  the  northern  district  of  Alabama,  in 
said  case,  the  same  being  in  the  nature  of  an  ancillary  proceed- 
ing filed  in  said  latter  court. 

The  special  master,  after  advertising  said  property  as  re- 
quired by  the  decree,  offered  the  same  for  sale  at  public  outcry 
on  May  5,  1897,  and  Joseph  Dickson  became  the  purchaser  at 
the  sum  of  $150,000,  as  will  fully  appear  in  the  master's  re- 
port filed  in  book  "B  B,"  pp.  216-223,  at  Nashville. 

On  May  17,  1897,  H.   M.   Doak,  the  special  master,  under 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         409 

the  power  in  him  vested  by  decree,  executed  a  deed  to  Joseph 
Dickson,  of  said  railroad,  properties,  easements,  franchises, 
etc.  Said  deed  was  pro[>erly  registered  in  the  register's  office 
of  Bedford  county,  in  book  No.  5,  p.  54;  in  Moore  county  in 
book  No.  6,  pp.  236-244;  in  Lincoln  county  in  deed  book  No. 
"E  E,"  pp.  85-91;  and  in  the  office  of  the  jud^e  of  probate 
court  of  Madison  county,  Alabama,  in  vol.  80  of  deeds,  p.  429. 
On  October  13,  1897,  Joseph  Dickson  and  wife  sold  the  rail- 
road, easements,  properties,  franchises,  etc.,  to  the  Nashville, 
Chattanooga  &  St.  Louis  Railway.  The  deed  was  registered 
March  12,  1898,  in  Bedford  county,  Tenn.,  in  book  5,  p.  394; 
in  Moore  county,  Tenn.,  on  March  14,  1898,  in  book  6,  p. 
406;  in  Lincoln  county,  Tenn.,  March  14,  1898,  in  book 
"F  F,"  p.  27;  in  Madison  county,  Ala.,  March  15,  1898,  in 
vol.  83  of  deeds,  p.  231;  in  Limestone,  Ala.,  March  19,  1898, 
in  vol.  58  of  deeds,  p.  379.  A  copy  of  the  deed  may  also  be 
found  in  the  next  chapter  herein. 

1.  The  sale  carried  bonds. — In  selling  the  railroad,  properties,  etc., 
Joseph  Dickson  also  delivered  up  to  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  all  the  first  mortgage  bonds  issued  save  one,  and  over 
five-sixths  of  the  second  mortgage  bonds,  as  well  as  all  the  uncertified 
bonds  of  both  the  first  and  second  mortgages. 

2.  See  deed  of  Dickson  to  Nashville,  Chattanooga  &  St.  Louis  Railway 
in  next  chapter. 

3.  Legality  of  purchase. — The  Nashville,  Chattanooga  &   St.    Louis 
Railway  had  the  authority  to  make  this  purchase  under  Acts  Tenn., 
1877,  ch.  20,  which  provided  that  "any  railroad  corporation  which  had 
been  created,  or  whose  corporate  existence  has  been  recognized,  by  any 
act  of  the  legislature  of  this  state,  is  hereby  authorized  and  empowered 
to  become  purchaser  of  any  railroad  sold  in  this  or  any  adjoining  state, 
under  any  judicial  proceeding  in  such  state,  or  sold  by  any  person  or 
persons,  natural  or  corporate,  who  may  have  purchased  or  derived  title 
under  or  from  any  such  judicial  sale."    Acts  Tenn.,  1877,  ch.  20;  Shan- 
non's Code,  2  1511.     As  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
purchased  the  road  from  Joseph  Dickson,  who  had,  in  turn,  purchased 
it  at  judicial  sale,  as  heretofore  explained,  this  act  should  be  the  con. 
trolling  one.     See,  also,  Acts  Tenn.,  1871,  ch.  69;  Shannon's  Code,  g  1609; 
Acts  1881,  ch.  9;  Acts  1891,  ch.  61;  Acts  1891,  ch.  125;  Code  (S.),  {  1521. 

In  AlitixniHi  the  authority  was  conferred  by  |  1586  of  Code  of  1886,  as 
amended  by  Acts  1890-91,  ch.  586;  Acts  1888-89,  p.  75.  See,  also,  Acts 
1890-91,  pp.  568,  1086;  Acts  1886-87,  p.  63;  Code  1886,  {1587;  Code  1896, 
21170. 


410         MIDDLE  TENNESSEE  &  ALABAMA  BRANCH 

What  franchises  passed  under  this  sale.— in  addition  to  the 

road,  property,  right  of  way,  etc. ,  therein  conveyed,  the  deed 
specifically  transferred  all  rights,  privileges,  and  franchises  of 
the  old  Decatur,  Chesapeake  &  New  Orleans  Railway  Company, 
and  of  the  Middle  Tennessee  &  Alabama  Railway  Company,  its 
successor.  See  deed  in  next  chapter. 

For  an  enumeration  of  the  franchises,  etc.,  see  Tennessee  and  Alabama 
charters  further  on  in  this  chapter. 

Distance  road  built  when  purchased. — As  will  be  seen  from 

the  Alabama  charter  farther  on  in  this  chapter,  the  road  was 
authorized  to  be  constructed  from  the  Mississippi  state  line  to 
the  Tennessee  river,  at  the  town  of  Decatur  or  New  Decatur, 
thence  across  the  Tennessee  river  to  a  point  on  the  boundary 
line  of  the  State  of  Tennessee;  thence  by  the  Tennessee  charter 
through  Fayetteville,  Shelbyville,  and  Murfreesboro  to  Galla- 
tin,  Tennessee. 

When  the  Nashville,  Chattanooga  &  St.  Louis  Railway  purchased  the 
road,  only  that  part  from  Fayetteville,  Tennessee,  south  to  Madison  Cross 
Roads,  Alabama,  a  distance  of  27.4  miles,  was  completed  and  in  opera- 
tion. From  Madison  Cross  Roads  to  Jeff,  a  distance  of  30.4  miles,  the 
track  had  once  been  laid,  but  when  purchased  by  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  the  ties  and  bridges  were  gone,  and  noth- 
ing but  the  rails  remained.  The  same  condition  existed  as  to  that  part 
of  the  road  from  the  Moore  county  line  to  Fayetteville,  a  distance  of  13.5 
miles.  From  Shelbyville  south  across  Duck  river,  2.1  miles,  the  track 
had  been  laid,  but  was  not  safe  for  engines  to  run  over.  From  this 
point  to  the  Moore  county  line,  a  distance  of  12.4  miles,  the  trestle  work 
was  completed,  but  the  grading  was  not.  From  Jeff  to  Decatur  Junction, 
a  distance  of  20  miles,  the  grading  had  at  one  time  been  almost  completed, 
but  nothing  else  done. 

1.  Right  to  remove  rails   on  parts  of  road  not  in  use. — The   Nashville,   Chattanooga   & 
St.  Louis  Railway,  as  the  legal  purchaser  of  the  property,  right  of  way,  privileges,  and 
franchises  of  this  road,  will  be  entitled  at  any  time  to  remove  the  rails,  cross-ties,  trestles, 
bridges,  piers,  and,  in  fact,  all  superstructures  off  those  parts  of  the  right  of  way  which  had 
not  been  completed,  or  upon  which  trains  could  not  run  when  the  purchase  was  made.  This 
is  too  clear  for  argument,  and  would  be  so  whether  the  railway  could  be  considered  in  law 
as  having  abandoned  that  part  of  the  right  of  way  or  not.    The  railway  company,  in  acquir- 
ing the  right  of  way,  did  not  take  the  fee,  but  simply  an  easement.    In  laying  down  the 
rails,  ties,  etc.,  or  in  building  the  bridges,  it  did  not  attach  them  to  the/««,  but  to  the  ease- 
ment.   If  a  forfeiture  or  abandonment  takes  place,  the  easement  is  removed  immediatedly 
from  the/#«,  and  with  it  is  carried,  of  course,  all  the  property  attached  thereto.    The  land- 
owner, therefore,  will  have  no  interest  in  them,  or  lien  thereon.    They  will  belong  to  the 
railway  company.    This  doctrine  has  been  uniformly  held  in  a  long  and  unbroken  chain  of 
authorities.    142  U.  S.,  396  (L.  C.  P.  Co.,  Book  35,  p.  1055);  22  Ohio  St.,  563;  30  Md.,  347;  87 
Pa.  St..  28. 

2.  What  constitutes  abandonment  of  right  of  way.— For  a  discussion  of  this  subject,  see 
"  Right  of  Way,"  "Abandonment,"  "Franchise,'''1  subhead,  "Frofeiture  of,"  herein.    Refer 
indent. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         411 

3.  Right  of  railway  to  abandon  part  or  whole  of  right  of  way.— Under  the  general  laws  of 
Tennessee  there  is  nothing  to  prevent  a  railway  company  from  abandoning  its  entire  right 
of  way,  though  such  action  would  work  a  forfeiture  of  its  charter.  A  failure  to  build  the 
entire  tine  of  road,  as  authorized  by  it*  charter,  however,  is  not  a  ground  of  forfeiture  in 
this  state.  It  is  probable,  however,  that  it  cannot  abandon  a  part  which  has  actually  been 
constructed  and  in  operation  without  such  rt-sult.  24  N.Y.,  101;  82  Am.  Dec.,  206:  17  Am.  L. 
Reg.  (N.  S.),  2M;  113  U.  S..  424;  Elliott  on  R.  R..  §038;  2  Barn.  &  Aid.,  648;  80  Wis.,  407;  20 
N.  W.  Rep..  090;  24  S.  E.  Rep.,  154;  4  1)11.,  47V;  29  Conn.,  538;  142  U.  S.,  492;  but  see  12  Gray, 
180;  1  Shannon  (Tenn.),  511;  120  III.,  48;  Rover  on  Railroads,  572. 

Under  the  Acts  of  Tenn..  1887,  ch.  39,  a  railroad  company  may  change  either  terminus 
before  the  final  location  of  the  road.  This  would  assist  in  many  cases. 

Width  Of  right  Of  way  (in  Tennessee).— The  Decatur,  Ches- 
apeake &  New  Orleans  Railway  Company  and  its  successor,  the 
Middle  Tennessee  &  Alabama  Railway  Company,  were  char- 
tered in  Tennessee,  under  the  general  Act  of  1875,  ch.  142. 
In  these  charters  there  are  no  clauses  granting  specified  num- 
bers of  feet  as  a  right  of  way,  in  the  absence  of  any  contract 
with  the  original  landowner,  as  was  done  in  the  charter  of  the 
Nashville,  Chattanooga  &  St.  Louis  Railway.  Section  9  of  the 
charter,  however,  provided  that  the  said  company  shall  have 
the  right  to  appropriate,  as  an  easement,  a  right  of  way  not 
exceeding  two  hundred  feet — one  hundred  on  each  side  of  the 
center  line  of  said  road — over  the  land  of  any  person  through 
which  the  line  of  track  may  be  located.  Under  this  section  the 
Decatur,  Chesapeake  &  New  Orleans  Railway  Company,  or  its 
successor,  the  Middle  Tennessee  &  Alabama  Railway  Company, 
could  have  originally  condemned  any  number  of  feet  up  to  and 
including  two  hundred,  for  a  right  of  way.  Whatever  number 
of  feet  was  originally  condemned,  however,  would  now  be  bind- 
ing upon  the  Nash ville,v  Chattanooga  &  St.  Louis  Railway. 
Should  no  purchase  or  condemnation  have  been  had  at  all,  then 
the  entry  and  construction  of  the  road  would  be  regarded  as  an 
appropriation  of  so  much  of  the  land  as  the  law  authorized, 
which  is  two  hundred  feet  in  Tennessee,  and  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  as  the  lawful  purchaser 
thereof,  would  be  entitled  to  that  number.  3  Lea  (Tenn.),  478. 
If  a  purchase  or  gift  from  the  landowner  was  made,  then,  of 
course,  the  deed  would  control  if  mention  is  made  of  the  width 
therein.  If  no  width  is  specified,  then  the  law  presumes  the 
statutory  width  of  two  hundred  feet  was  intended.  98  Ala., 
647.  See,  also,  3  Lea  (Tenn.),  478. 


412  MIDDLE    TENNESSEE    &    ALABAMA    BRANCH 

(In  Alabama.) — As  the  charter  granted  by  the  State  of  Ala- 
bama conferred  upon  the  company  the  pwvers,  capacities,  du- 
ties, liabilities,  etc.,  as  expressed  in  ch.  6,  title  1,  part  2,  of 
the  Code  of  Alabama,  reference  must  be  had  thereto  in  ascer- 
taining its  power  to  condemn  a  right  of  way.  By  subsec.  8 
of  §  1580  of  the  Code  of  1886,  or  subsec.  8  of  the  Code  of 
1896,  which  is  contained  in  the  chapter,  title,  and  part  above 
referred  to,  the  company  is  given  the  power  to  purchase  or 
condemn  a  right  of  way  not  exceeding  one  hundred  feet  in 
width  throughout  its  entire  length  of  road  in  Alabama.  If  the 
landowner  executed  a  deed,  therefore,  for  the  right  of  way, 
and  no  mention  is  made  of  the  width  ^  then  the  law  presumes 
the  statutory  width  of  one  hundred  feet  was  granted.  98  Ala., 
647.  If  the  deed  or  condemnation  proceedings  provide  a  spec- 
ified width,  then  that  controls.  If  there  is  no  deed  or  condem- 
nation^ then  the  entry  and  construction  of  the  road  would 
doubtless  be  regarded  as  an  appropriation  of  the  statutory  one 
hundred  feet.  3  Lea  (Tenn.),  476. 

1.  Width  of  right  of  way  from  Fayetteville  to  Madison  Cross  Roads. 
— It  will  be  seen,  from  the  deed  of  Joseph  Dickson  in  the  next  chapter, 
that  the  width  of  the  right  of  way  from  Fayetteville,  Tenn.,  to  Madison 
Cross  Roads,  Ala.,  is  guaranteed  to  be  at  least  thirty  feet  wide  on  either 
side  of  the  center  of  the  road. 

2.  Statute  of  limitations. — It  is  possible  that  the  statute  of  limitations 
would  run  against  the  railway  company  on  this  line  of  road,  under  the 
charter  of  the  Decatur,  Chesapeake  &  New  Orleans  Railway  Company  or 
the  Middle  Tennessee  &  Alabama  Railway  Company,  if  adjoining  land- 
owners are  allowed  to  use  and  occupy  adversely  a  part  of  the  two  hun- 
dred foot  right  of  way  in  Tennessee,  or  the  one  hundred  foot  right  of 
way  in  Alabama,  though  this  question  has  never  been  decided.  This 
would  more  likely  be  so  in  Alabama,  as  g  1187  of  the  Code  of  1896  pro- 
vides for  a  forfeiture  of  franchises  by  nonueer  for  five  consecutive  years. 
There  is  no  such  statute  in  Tennessee,  however,  and  our  courts  might 
not  so  hold.  This  cannot  happen  on  the  main  branch,  however,  under 
the  charter  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway.  See 
charter  herein,  chapter  1.  In  considering  the  question,  however,  atten- 
tion is  called  to  Acts  Tenn  ,  1849-50,  ch.  266,  sec.  3,  which  provides  that 
"all  branches  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  as 
may  be  made,  shall  have  all  the  rights  and  privileges,  and  be  placed  in 
all  respects  on  the  same  footing,  as  the  Nashville,  Chattanooga  &  St. 
Louis  Railway." 

3.  Further  discussions. — For  a  more  extensive  discussion  of  this  sub- 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.         413 

ject,  together  with  the  right  of  taking  more  than  two  hundred  feet  in 
Tennessee  or  one  hundred  feet  in  Alabama,  see  "Eminent  Domain," 
herein.  Refer  to  Index. 

ORIGINAL  CHARTER  OF  THE  DECATUR,  CHES- 
APEAKE &  NEW  ORLEANS  RAILWAY 
COMPANY. 

[!N  TENNESSEE.] 
(Chartered  under  General  Acts  Tenn.,  1875,  ch.  142,  sec.  6.) 

SECTION  i.  Incorporation,  name,  route,  general  powers.— 
Be  it  Jbnownt  that  J.  W.  Rowles,  Geo.  W.  Morgan,  J.  H.  Hoi- 
man,  F.  G.  Buchanan,  G.  C.  Sandusky,  R.  P.  Frierson,  Joe 
D.  Wilhoite,  W.  W.  Gill,  B.  M.  Tillman,  W.  A.  Frost,  citizens 
of  the  State  of  Tennessee,  not  under  the  age  of  twenty-one 
years,  are  hereby  constituted  a  body  politic  and  corporate  by 
the  name  and  style  of  "The  Decatur,  Chesapeake  &  New  Or- 
leans Kail  way  Company,"  for  the  purpose  of  constructing  a 
railway  from  the  Alabama  state  line  to  Gallatin,  in  Sumner 
county,  Tennessee,  connecting,  at  the  line  of  Lincoln  county 
and  State  of  Alabama,  with  a  railway  projected  by  a  corpora- 
tion chartered  under  the  laws  of  Alabama,  from  Decatur,  in 
said  State  of  Alabama,  to  said  state  line,  being  the  southern 
boundary  line  of  Lincoln  county,  commencing  at  a  point  on  said 
line  near  a  point  directly  between  Decatur,  Alabama,  and  Fay- 
etteville;  thence  to  Fayetteville;  thence  to  Shelbyville,  in  Bed- 
ford county;  thence  to  Murfreesboro,  in  Rutherford  county; 
and  thence  to  Gallatin,  in  Sumner  county,  all  within  the  State 
of  Tennessee. 

1.  Charter  amended;  may  change  termini. — By  Acts  Tenn.,  1387,  ch. 
30,  sees.  1,  2,  all  railroad  companies,  chartered  under  the  general  laws 
of  this  state,  may,  by  resolution  of  board  of  directors,  change  either 
terminus  before  the  final  location  of  the  road.    See  act  itself  for  method. 

2.  Arbitration. — liy-laws  for  arbitration  sustained.  7  Pick.  (Tenn.),  04. 

3.  Branches.  —  Hy  Acts  Tenn.,  1889,  ch.  158,  all  railroad  companies, 
chartered  under  the  general  laws,  are  allowed  to  build  branch  roads  in 
certain  cases.     See  act  itself  for  method. 

4.  Incorporative  name. — This  company  was  also  chartered   in  Ala- 
bama.    For  charter,  see  further  on  in  this  chapter.     It  subsequently  is- 
sued bonds,  secured  by  mortgage,  which  was  foreclosed.     At  the  sale  a 
reorganization  committee  bought  it  in,  and,  as  such  purchasers,  took  the 


414  ORIGINAL    CHARTER    M.    T.    &    A.    BRANCH 

necessary  steps  to  become  incorporated,  under  §  1514  of  Shannon's  Code 
of  Tennessee,  and  of  \  1598  of  the  Code  of  Alabama,  1886,  as  the  "  Middle 
Tennessee  &  Alabama  Railway  Company." 

SEC.  2.  General  powers  (Continued).— The  general  powers 
of  said  corporation  are  to  sue  and  be  sued  by  the  corporate 
name;  to  have  and  use  a  common  seal,  which  it  may  alter  at 
pleasure;  if  no  common  seal,  then  the  signature  of  the  name  of 
the  corporation  by  any  duly  authorized  officer  shall  be  legal 
and  binding;  to  purchase  and  hold  or  receive  by  gift,  in  addi- 
tion to  the  personal  property  owned  by  said  corporation,  any 
real  estate  necessary  for  the  transaction  of  the  corporate  busi- 
ness, and  also  to  purchase  or  accept  any  real  estate  in  payment, 
or  part  payment,  of  any  debt  due  to  the  corporation,  and  sell 
realty  for  corporation  purposes;  to  establish  by-laws  and  make 
all  rules  and  regulations  not  inconsistent  with  the  laws  and  the 
constitution  deemed  expedient  for  the  management  of  corporate 
affairs;  to  appoint  such  subordinate  officers  and  agents,  in  ad- 
dition to  the  president  and  secretar}"  or  treasurer,  as  the  busi- 
ness of  the  corporation  may  require;  to  designate  the  name  of 
the  office  and  fix  the  compensation  of  the  officer. 

SEC.  3.  Special  provisions. — The  following  provisions  and 
restrictions  are  coupled  with  said  grant  of  powers:  A  failure  to 
elect  officers  at  the  proper  time  does  not  dissolve  the  corpora- 
tion, but  those  in  office  hold  until  the  election  or  appointment 
and  qualification  of  their  successors.  The  term  of  all  officers 
may  be  fixed  by  the  by-laws  of  the  corporation,  the  same  not, 
however,  to  exceed  two  years.  The  corporation  may,  by  by- 
laws, make  regulations  concerning  the  subscription  for  or 
transfer  of  stock;  fix  upon  the  amount  of  capital  to  be  invested 
in  the  enterprise,  the  division  of  the  same  into  shares,  the  time 
required  for  payment  thereof  by  the  subscribers  for  stock,  the 
amount  to  be  called  for  at  any  one  time,  and,  in  case  of  failure 
of  any  stockholder  to  pay  the  amount  thus  subscribed  by  him 
at  the  time  and  in  the  amounts  thus  called,  a  right  of  action 
shall  exist  in  the  corporation  to  sue  said  defaulting  stockholder 
for  the  same. 

See  3  Hum.,  531;  12  Lea,  252;  4  Cold.,  101. 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         415 

SEC.  4.  Directors,  quorum  Of;  bOOkS.— The  board  of  direct- 
ors, which  may  consist  of  five  or  more  members,  at  the  option 
of  the  corporation,  to  be  elected  either  in  person  or  by  proxy, 
by  a  majority  of  the  votes  cast,  each  share  representing  one 
vote,  shall  keep  a  full  and  true  record  of  all  their  proceedings, 
and  an  annual  statement  of  receipts  and  disbursements  shall  be 
copied  on  the  minutes,  subject  at  all  times  to  the  inspection  of 
any  stockholder.  The  books  of  the  corporation  shall  show  the 
original  or  subsequent  stockholders,  their  respective  interests, 
the  amount  which  has  been  paid  on  the  shares  subscribed,  the 
transfer  of  stock,  by  and  to  whom  made;  also  other  transac- 
tions in  which  it  is  presumed  a  stockholder  or  creditor  may 
have  an  interest. 

SEC.  5.  Unpaid  StOCk. — The  amount  of  any  unpaid  stock  due 
from  a  subscriber  to  the  corporation,  shall  be  a  fund  for  the 
payment  of  any  debts  due  from  the  corporation,  nor  shall  the 
transfer  of  stock  by  any  subscriber  relieve  him  from  payment 
unless  his  transferee  has  paid  up  all  or  any  of  the  balance  due 
on  said  original  subscription. 

See  10  Pickle,  154,  608. 

SEC.  6.  Express  and  implied  powers.— By  no  implication  or 
construction  shall  the  corporation  be  deemed  to  possess  any 
powers  except  those  hereby  expressly  given  or  necessarily  im- 
plied from  the  nature  of  the  business  for  which  the  charter  is 
granted,  and  by  no  inference  whatever  shall  said  corporation 
possess  the  power  to  discount  notes  or  bills,  deal  in  gold  or  sil- 
ver coin,  issue  any  evidence  of  debts  as  currency,  buy  and  sell 
any  agricultural  products,  deal  in  merchandise,  or  engage  in 
any  business  outside  the  purpose  of  the  charter. 

SEC.  7.  Charter  may  be  repealed  or  amended.— The  right  is 

reserved  to  repeal,  annul,  or  modify  this  charter.  If  it  is  re- 
pealed, or  if  the  amendments  proposed,  being  not  merely  aux- 
iliary but  fundamental,  are  rejected  by  a  vote  representing 
more  than  half  of  the  stock,  the  corporation  shall  continue  to 
exist  for  the  purpose  of  winding  up  its  affairs,  but  not  to  enter 
upon  any  new  business.  If  the  amendments  or  modifications, 
being  fundamental,  are  accepted  by  the  corporation  as  afore- 


416  ORIGINAL   CHARTER    M.    T.    &    A.    BRANCH 

said,  in  a  general  meeting  to  be  called  for  that  purpose,  any 
minor,  married  woman,  or  other  person  under  disability,  or 
any  stockholder  not  agreeing  to  the  acceptance  of  the  modifica- 
tion, shall  cease  to  be  a  stockholder,  and  the  corporation  shall 
be  liable  to  pay  said  withdrawing  stockholders  the  par  value  of 
their  stock,  if  it  is  worth  so  much,  if  not,  then  so  much  as  may 
be  its  real  value  in  the  market  on  the  day  of  the  withdrawal  of 
said  stockholders  as  aforesaid;  Provided,  That  the  claims  of 
all  creditors  are  to  be  paid  in  preference  to  said  withdrawing 
stockholders. 

The  charter  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway  can- 
not be  amended  without  consent  of  company.  See  sec.  34  of  that  charter. 

SEC.  8.  Directors,  powers  Of. — A  majority  of  the  board  of 
directors  shall  constitute  a  quorum,  and  shall  fill  all  vacancies 
until  the  next  election.  The  first  board  of  directors  shall  con- 
sist of  the  five  or  more  corporators  who  shall  apply  for  and 
obtain  the  charter.  The  said  corporation  may  have  the  right 
to  borrow  money  and  issue  notes  or  bonds  upon  the  faith  of 
the  corporate  property,  and  also  to  execute  a  mortgage  or 
mortgages  as  further  security  for  repayment  of  money  thus 
borrowed. 

SEC.  9.  Condemnation  of  right  of  way,  two  hundred  feet. 

—The  said  corporation  shall  have  the  right,  in  pursuance  of 
the  general  law  authorizing  the  condemnation  of  private  prop- 
erty for  works  of  internal  improvement,  as  set  forth  in  §§  1325 
to  1348  in  the  code  (both  inclusive),  to  appropriate  as  an  ease- 
ment the  right  of  way,  not  exceeding  two  hundred  feet,  over 
the  land  of  any  person  through  which  the  line  of  the  track  may 
be  located.  Said  sections  of  the  code  are  hereby  literally  cop- 
ied and  inserted,  in  the  words  and  figures  following: 

SEC.  10  (1325).  Land  may  be  taken,  how.— Any  person 

or  corporation  authorized  by  law  to  construct  any  railroad, 
turnpike,  canal,  toll  bridge,  road,  causeway,  or  other  work  of 
internal  improvement  to  which  the  like  privilege  is  conceded, 
may  take  the  real  estate  of  individuals  not  exceeding  the  amount 
prescribed  by  law  or  by  the  charter  under  which  the  person  or 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         417 

corporation  acts,  in  the  manner  and  upon  the  terms  herein  pro- 
vided. (Iowa  Code,  1851,  §759.) 

1.  Disability  of  owner  does  not  affect  the  right. — The  right  to  take 
land  under  the  power  of  eminent  domain  is  not  restricted  by  any  dis- 
ability of  the  owner,  who  is  entitled  to  demand  and  receive  the  value  of 
the  property,  but  must  show  title.     3  Head  (Tenn.).  63-65. 

2.  By  Acts  Tenn.,  1885,  ch.  135,  the  operation  of  this  and  succeeding 
sections  was  extended  so  as  to  apply  and  include  the  condemnation  and 
taking  of  the  property,  privileges,  rights,  or  easements  of  private  corpo- 
rations.    See  act  itself  for  method. 

3.  By  Acts  1889,  p.  447,  as  embodied  in  Shannon's  Code,  \  1879,  it  was 
made  unlawful  to  construct  or  use  any  steam  railway  on  any  county 
road  or  highway,  without  the  consent  of  the  county  court,  to  be  granted 
in  a  method  therein  set  out. 

SEC.  11  (1326).  Proceedings,  etc. — The  party  seeking  to 
appropriate  such  lands  shall  tile  a  petition  in  the  circuit  court 
of  the  county  in  which  the  land  lies,  setting  forth,  in  substance: 
(1)  The  parcel  of  land  a  portion  of  which  is  wanted,  and  the 
extent  wanted;  (2)  the  name  of  the  owner  of  such  land,  or,  if 
unknown,  stating  the  fact;  (3)  the  object  for  which  the  land  is 
wanted;  (4)  a  prayer  that  a  suitable  portion  of  land  may  be  de- 
creed to  the  petitioner  and  set  apart  by  metes  and  bounds. 
(Iowa  Code,  1851,  §760.) 

Petition  need  not  be  sworn  to. 

SEC.  12  (1327).  Notice  to  answer. — Notice  of  this  petition 
shall  be  given  to  the  owner  of  the  land,  or,  if  a  nonresident  of 
the  county,  to  his  agent,  at  least  five  days  before  its  presenta- 
tion. (/£.,  modified.) 

SEC.  13  (1328).   Where  owner  nonresident— if  the  owner 

is  a  nonresident  of  the  state,  or  unknown,  notice  shall  be  given 
by  publication  as  provided  in  this  code  in  similar  cases  in 
chancery. 

SEC.  14  (1329).  Proceedings  only  bind  parties.— All  par- 
ties having  any  interest  in  any  way  in  such  land  may  be  made 
defendants,  and  the  proceedings  will  only  cover  and  affect  the 
interest  of  those  who  are  actually  made  parties,  unborn  remain- 

27  '  » 


418  ORIGIN  At,   CHARTER    M.    T.    &    A.    BRANCH 

der-men  being,  however,  bound  by  proceedings  to  which  all 
living  persons  in  interest  are  parties. 

Tenants  for  life,  years,  and  reversioners  are  interested  parties,  and 
must  be  compensated.  2  Head,  65,  176. 

SEC.  15  (1330).   Writ  of  inquiry  of  damages.— After  the 

requisite  notice  has  been  given,  if  no  sufficient  cause  to  the 
contrary  is  shown,  the  court  shall  issue  a  writ  of  inquiry  of 
damages  to  the  sheriff,  commanding  him  to  summon  a  jury  to 
inquire  and  assess  the  damages.  (Iowa  Code,  1851,  §  763.) 

SEC.  16  (1331).    Clerk  to  issue  writ,  sheriff  to  summon 

jury. — By  consent  of  parties,  or  on  application  of  the  plaintiff, 
unless  objection  is  made  by  the  defendant,  the  writ  of  inquiry 
may  be  issued  by  the  clerk  as  of  course,  after  service  of  no- 
tice, on  which  the  sheriff  will  summon  the  jury. 

SEC.  17  (1332).)  Jury  to  be  disinterested.— The  jurors  shall 
not  be  interested  in  the  same  or  a  similar  question,  and  shall 
possess  the  qualifications  of  other  jurors,  and  may  be  nomi- 
nated by  the  court,  selected  by  consent  of  parties,  or  summoned 
by  the  sheriff. 

SEC.  18  (1333).  Failure  to  attend. — If  named  by  the  court, 
and  the  persons  named  are  unable  to  attend  when  summoned, 
the  place  of  such  persons  shall  be  supplied  by  the  sheriff. 

SEC.  19  (1334).    Number  of  jurors ;  challenges.— The  jury 

will  consist  of  five  persons,  unless  the  parties  agree  upon  a  dif- 
ferent number;  and  either  party  may  challenge  for  cause,  or 
peremptorily,  as  in  other  civil  cases. 

See  11  Heis.,  56;  12  Heis.,  56,  57. 

SEC.  20  (1335).  Notice  Of  taking  inquest.— The  sheriff 
shall  give  the  parties  or  their  agents,  if  residents  of  the  county, 
three  days'  notice  of  the  time  and  place  of  taking  the  inquest, 
unless  the  time  has  been  fixed  by  the  order  of  the  court.  (Iowa 
Code,  1851,  §771.) 

SEC.  21  (1336).    Jury  to  be  sworn  by  sheriff.— The  jury, 

before  proceeding  to  act,  shall  be  sworn  by  the  sheriff  fairly 
and  impartially,  without  favor  or  affection,  to  lay  off  by  metes 
and  bounds  the  land  required  for  the  proposed  improvement, 
and  to  inquire  and  assess  the  damages. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         419 

SEC.  22  (1337).    To  examine  ground  and  assess  damages. 

— The  jury  will  then  proceed  to  examine  the  ground  and  may 
hear  testimony,  but  no  argument  of  counsel,  and  set  apart  by 
metes  and  bounds  a  sufficient  quantity  of  land  for  the  purposes 
intended,  and  assess  the  damages  occasioned  to  the  owner 
thereby.  (Iowa  Code,  1851,  §  768.) 
See  3  Lea,  482. 

SEC.  23  (1338).  Damages,  hOW  estimated.— In  estimating 
the  damages,  the  jury  shall  give  the  value  of  the  land  without 
deduction,  but  incidental  benefits  which  may  result  to  the  owner 
by  reason  of  the  proposed  improvement  may  be  taken  into  con- 
sideration in  estimating  the  incidental  damages. 

For  full  discussion  of  this,  see  "Eminent  Domain"  herein.  Refer  to 
index. 

SEC.  24  (1339).    Report  returned  in  writing.— The  report 

of  the  jury  shall  be  reduced  to  writing,  signed  by  a  majority 
of  the  jurors,  delivered  to  the  sheriff,  and  by  him  returned 
into  court. 

SEC.  25  (1340).  Confirmation  Of  report. — If  no  objection 
is  made  to  the  report,  it  is  confirmed  by  the  court,  and  the  land 
decreed  to  the  petitioner,  upon  payment  to  the  defendants,  or 
to  the  clerk  for  their  use,  of  the  damages  assessed,  with  costs. 
(/£.,  §775  modified.) 

SEC.  26  (1341).    Exception  to  report;  new  writ.— Either 

party  may  object  to  the  report  of  the  jury,  and  the  same  may, 
on  good  cause  shown,  be  set  aside  and  new  writ  of  inquiry 
awarded.  (Act  1849-50,  ch.  72,  §  5.) 

SEC.  27  (1342).  Appeal ;  new  trial. — Either  party  may  also 
appeal  from  the  finding  of  the  jury,  and  on  giving  security  for 
the  costs,  have  a  trial  anew  before  a  jury  in  the  usual  way. 
(/£>.,  modified.) 

See  12  Heis.  (Tenu.),  57. 

SEC.  28  (1343).  Costs  against  appellant  when  not.— if  the 

verdict  of  the  jury  upon  the  trial  affirms  the  finding  of  the  jury 
of  inquest,  or  is  more  unfavorable  to  the  appellant  than  the 
finding  of  such  jury,  the  cost  shall  be  adjudged  against  such 


420  ORIGINAL    CHARTER    M.    T.    &    A.    BRANCH 

appellant;  otherwise  the  court  may  award  costs  as  in  chancery 
cases.  (/£•) 

SEC.  29  (1344.)  Appeal  does  not  suspend  work,  how.— The 

taking  an  appeal  does  not  suspend  the  operations  of  the  peti- 
tioner on  the  land,  provided  such  petitioner  will  give  bond  with 
good  security,  to  be  approved  by  the  clerk,  in  double  the 
amount  of  the  assessment  of  the  jury  of  inquest,  payable  to  the 
defendant,  and  conditioned  to  abide  by  and  perform  the  final 
judgment  in  the  premises. 

SEC.  30  (1345.)  Preliminary  surveys,  damages.— A  per- 
son or  company  actually  intending  to  make  application  for  the 
privileges  herein  contemplated,  and  entering  upon  the  land  of 
another  for  the  purpose  of  making  the  requisite  examinations 
and  surveys,  and  doing  no  unnecessary  injury,  is  liable  only 
for  the  actual  damage  done  ;  and  sued  in  such  case,  the  plaintiff 
shall  recover  only  as  much  costs  as  damages.  (Iowa  Code, 
1851,  §778.) 

SEC.  31  (1346).    Damages  to  be  prepaid,  or  bond  on  appeal. 

—No  person  or  company  shall,  however,  enter  upon  such  land 
for  the  purpose  of  actually  occupying  the  right  of  way  until 
the  damages  assessed  by  the  jury  of  inquest  and  the  cost  have 
been  actually  paid,  or,  if  an  appeal  has  been  taken,  until  the 
bond  has  been  given  to  abide  by  the  final  judgment  as  before 
provided. 

See  6  Cold.,  162;  7  Heis.,  518,  535;  13  Lea,  671. 

SEC.  32  (1347).  Owner  may  have  inquest  or  sue  for  dam- 
ages, when;  proceedings. — If,  however,  such  person  or  company 
has  actually  taken  possession  of  such  land,  occupying  it  for  the 
purpose  of  internal  improvement,  the  owner  of  such  land  may 
petition  for  a  jury  of  inquest,  in  which  case  the  same  proceed- 
ings may  be  had,  as  near  as  may  be,  as  hereinbefore  provided; 
or  he  may  sue  for  damages  in  the  ordinary  way,  in  which  case 
the  jury  shall  lay  off  the  lands  by  metes  and  bounds  and  assess 
the  damages  as  upon  the  trial  of  an  appeal  from  the  return 
of  a  jury  of  inquest. 

See  2  Head,  174,  665;  3  Lea,  480;  13  Lea,  670. 


NASHVILLE,    CHATTANOOGA   <fe    ST.    LOUIS    RAILWAY.         421 

SEC.  33  (1348).    Limitation  of  proceedings  by  owner.— 

The  owners  of  land  shall,  in  such  cases,  commence  proceedings 
within  twelve  months  after  the  land  has  been  actually  taken 
possession  of  and  the  work  of  proposed  internal  improvement 
begun;  saving,  however,  to  unknown  owners  and  nonresidents 
twelve  months  after  actual  knowledge  of  such  occupation  not 
exceeding  three  years;  and  saving  to  persons  under  disabilities 
of  infancy,  coverture,  and  unsoundness  of  mind  twelve  months 
after  such  disability  is  removed,  but  not  exceeding  ten  years. 

See  12  Heis.,  623.  See  also  "Eminent  Domain"  herein.  Refer  to  in- 
dex. 

SEC.  34.  Gauge,  transportation  charges,  construction  of 

tracks  on  highways. — The  corporation  is  authorized  to  adopt 
such  gauge  as  they  may  prefer.  The  charge  for  transportation 
shall  not  exceed  twenty-five  cents  per  hundred  pounds  on  heavy 
articles  and  ten  cents  per  cubic  foot  on  articles  of  measurement 
for  every  hundred  miles  transported,  and  four  cents  per  mile 
for  every  passenger,  with  power  to  make  special  contracts  with 
shippers  on  their  roads  in  regard  to  rate  of  freight,  so  as  not 
to  exceed  the  amounts  herein  designated.  The  line  of  track  of 
the  road  shall  be  constructed  so  as  not  to  interfere  with  con- 
venient travel  of  the  public  along  the  highways,  country  roads, 
streets,  and  alleys  of  cities,  towns  and  villages,  and  so  as  to 
allow  carts,  wagons,  carriages,  and  other  vehicles  conveniently 
and  safely  to  pass  over  or  under  the  line  of  the  track,  and  so 
as  not  to  intercept  traveling  on  foot  or  horseback,  or  in  vehicles 
of  any  kind,  from  the  necessary  and  proj>er  use  of  the  public 
roads,  streets  or  alleys,  in  the  usual  and  proper  mode  for  their 
convenience. 

By  Acts  Tenn.,  1885,  ch.  20,  all  railroad  companies  in  the  state  were 
authorized  to  select  and  alter  the  gauge  of  their  road  at  pleasure. 

SEC.  35.  Crossings;  Signboards. — Boards  well  supported 
by  posts  or  otherwise  shall  be  placed  and  constantly  kept  across 
each  public  road,  when  the  same  is  crossed  on  the  same  level 
by  the  track  of  the  railway,  the  boards  to  be  elevated  so  as  not 
to  obstruct  travel,  and  on  each  side  of  said  boards  there  shall 
be  printed  in  large  letters,  easily  to  be  seen  by  the  traveler, 


422  ORIGINAL    CHARTER    M.    T.    <fe    A.     BRANCH 

the  words  "  Railroad  Crossing — Look  out  for  the  Cars."  Said 
boards  need  not  be  put  up  at  the  crossing  of  streets  and  alleys 
in  cities,  towns,  and  villages,  but  such  railroad  company  shall 
be  subject  to  such  proper  regulations,  made  by  municipal 
authorities  in  pursuance  of  general  municipal  powers,  regu- 
lating speed,  passage,  and  flagman  in  such  municipalities  and  at 
crossings;  and  when  there  are  sidings  and  switches,  the  whistle 
shall  always  be  blown  at  a  distance  of  not  less  than  two  hundred 
and  fifty  yards  from  every  crossing  of  a  public  road.  When 
land  on  both  sides  of  the  track  is  owned  by  the  same  proprie- 
tor, convenient  crossings  shall  be  made  and  kept  up  at  the 
expense  of  the  corporation  for  the  use  of  said  proprietor,  and 
all  necessary  cow -gaps  made. 

SEC.  36.  Regulations  for  running  trains;  fare  must  be 

paid. — The  board  of  directors  shall  fix  the  regular  times  for 
the  running  of  trains  for  the  transportation  of  passengers  and 
property,  and  shall  furnish  sufficient  accommodation  for  the 
safe,  comfortable,  and  convenient  transportation,  and  shall 
take,  transport,  and  discharge  such  passengers  and  property  at, 
from,  and  to  such  places  on  the  due  payment  of  freights,  tolls, 
and  fare  legally  authorized  to  be  charged  therefor,  and.  in  case 
of  the  refusal  of  said  corporation,  their  officers  or  agents,  to 
take  and  transport  any  passenger,  or  to  deliver  the  same,  or 
either  of  them,  at  the  regular  and  appointed  time,  such  corpo- 
ration shall  pay  to  the  party  aggrieved  all  damages  thereby 
suffered,  with  costs  of  suit.  If  any  passenger  refuse  to  pay 
his  toll  or  fare,  the  conductor  may  put  him  off  the  cars  at  any 
station  or  convenient  point  where  said  passenger  can  step  on 
land. 

SEC.  37.  Prohibited  contracts ;  must  receive  freight  from 

Other  roads. — The  corporation  shall  make  no  contract  giving 
any  person  a  preference  in  the  speedy  shipment  of  freights. 
This  corporation  shall  receive  on  their  road  full  freighted  cars 
from  other  roads,  and  transport  them,  without  breaking  bulk, 
to  the  place  of  destination,  charging  for  the  goods,  wares,  and 
merchandise  therein  no  greater  rate  of  freight  than  is  charged 
for  similar  goods,  wares,  and  merchandise  in  their  own  cars, 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         423 

and  return  said  cars  free  of  charge;  Provided,  The  cars  thus  to 
be  received  are  good  and  substantial;  And  alxo provided,  The 
distance  said  wares  and  merchandise  are  to  be  transported  is 
not  less  than  twenty  miles. 

SEC.  38.  Officers  and  directors,  capital  stock,  shares,  books. 

—The  said  h've  or  more  corporators  shall,  within  a  convenient 
time  after  the  registration  of  this  charter  in  the  office  of  the 
secretary  of  state,  select  from  their  number  a  president,  secre- 
tary and  treasurer,  or  the  last  two  offices  may  l>e  combined  into 
one,  and  shall  not  necessarily  be  stockholders,  said  president 
and  the  other  corporators  to  constitute  the  first  board  of  di- 
rectors. The  board  of  directors  may  fix  the  amount  of  capi- 
tal stock  of  the  company  and  the  number  of  shares  into  which 
the  same  may  be  divided,  and  under  their  direction  subscrip- 
tion books  may  be  opened  to  obtain  stock,  all  other  persons 
having  an  equal  right  with  said  original  corporators  to  subscribe 
for  stock  until  the  full  amount  of  said  capital  stock  is  sub- 
scribed. When  a  sufficient  amount  of  stock  is  subscribed,  no- 
tice, personal  or  by  advertisement  in  a  newspaper  where  the 
principal  office  of  the  corporation  is  to  be  kept,  is  to  be  given 
of  the  time  and  place  of  an  election  of  officers.  The  result  of 
all  elections  is  to  be  determined  by  a  majority  of  the  votes 
cast,  each  share  to  represent  one  vote. 

SEC.  39.  Directors  may  increase  Capital.— The  board  of  di- 
rectors may  at  any  time  increase  the  capital  stock  if  the  neces- 
sities of  the  corporation,  in  their  estimation,  require  said  in- 
crease. 

SEC.  40.  May  enter  upon  private  lands.— The  company,  by 

its  officers  or  agents,  may  enter  upon  the  lands  of  private  per- 
sons for  the  purpose  of  making  surveys,  estimates,  and  location 
of  route. 

SEC.  41.  Shares  of  stock  personalty.— The  stock  is  to  be 

impressed  with  the  character  of  personal  property. 

We,  the  undersigned,  apply  to  the  State  of  Tennessee,  by 
virtue  of  the  law  of  the  land,  for  a  charter  of  incorporation  for 


424  ORIGINAL    CHARTER    M.    T.     &    A.    BRANCH 

the  purposes  and  with  the  powers,  etc.,  declared  in  the  forego- 
ing instrument. 

Witness  our  hands,  this  twentieth  day  of  July,  1887. 

G.  C.  SANDUSKY, 

JO  D.   WlLHOITE, 

R.  P.  FRIERSON, 
W.  W.  GILL, 

B.   M.  TlLLMAN, 

FELIX  G.  BUCHANAN, 
J.  W.  RAWLS, 
J.  H.  HOLMAN, 
G.  W.  MORGAN, 
W.  H.  FROST. 
STATE  OF  TENNESSEE,  ) 
Bedford  County,       \ 

Personally  appeared  before  me,  Will  J.  Muse,  clerk  of  the 
county  court  of  said  county,  the  above  named,  G.  C.  Sandusky, 
Jo  D.  Wilhoite,  R.  P.  Frierson,  W.  W.  Gill,  and  B.  M.  Till- 
man,  the  bargainers,  with  whom  I  am  personally  acquainted, 
and  who  acknowledged  that  they  executed  the  within  instru- 
ment for  the  purposes  therein  contained.  Witness  my  hand,  at 
office,  twentieth  day  of  July,  1887. 

WILL  J.  MUSE,  Clerk. 

By  J.  MARSHALL,  D.  C. 

STATE  OF  TENNESSEE,  | 
Lincoln  County.        } 

Personally  appeared  before  me,  E.  S.  Wilson,  clerk  of  the 
county  court  of  Lincoln  county,  said  state,  Felix  G.  Buchanan, 
J.  W.  Rawls,  J.  H.  Holman,  and  G.  W.  Morgan  and  W.  A. 
Frost,  the  bargainers,  with  whom  I  am  personally  acquainted, 
and  acknowledged  that  they  executed  the  foregoing  instrument 
for  the  purposes  therein  containe,d.  Witness  my  hand,  at  office, 
twenty-sixth  day  of  July,  1887.  E.  S.  WILSON,  Clerk. 

The  foregoing-  charter  was-  registered  in  the  register's  office  of  Lin- 
coln county,  in  Trust  Deed  Book  No.  8,  p.  22-31,  on  July  26,  1887.  It 
was  registered  in  the  secretary  of  state's  office  at  Nashville,  Tenn.,  July 
28,  1887,  in  book  "F,"  p.  157. 


NASHVILLE,    CHATTANOOGA    <ft    ST.    LOUIS    RAILWAY.         425 

ORIGINAL  CHARTER  OF  THE  DECATUR,  CHES- 
APEAKE &  NEW  ORLEANS  RAILWAY  COM- 
PANY. 

[!N  ALABAMA.] 

Preamble. — STATE  OF  ALABAMA,  MORGAN  COUNTY.  The 
subscribers,  who  are  citizens  of  the  county  of  Morgan,  State 
of  Alabama,  residing  in  the  towns  of  Decatur  and  New  Deca- 
tur,  in  said  county,  are  desirous  of  forming  a  corporation  for 
the  construction,  building  and  operating  a  railroad  having  the 
power  and  capacity,  and  subject  to  the  duties  and  liabilities, 
expressed  in  ch.  6,  title  1,  part  2,  of  the  Code  of  Alabama. 

The  powers,  etc.,  contained  in  chapter  6,  title  1,  part  2,  referred  to 
above,  and  which  are  set  out  in  the  Code  of  1886  as  \  1580  et  seq.,  and  \  1163 
of  the  Code  of  1896,  are  as  follows: 

1 1580.  Powers  of  the  corporation. — When  duly  organized,  the  cor- 
poration has  power — 

1.  To  have  succession,  by  its  corporate  name,  for  the  period  expressed 
in  the  declaration,  or,  if  no  period  be  expressed,  perpetually. 

2.  To  sue  and  be  sued,  to  have  a  common  seal,  and  to  alter  the  same 
at  pleasure. 

3.  To  hold,  purchase,  dispose  of.  and  convey  such  real  and  personal 
property  as  its  uses  and  business  may  require. 

4.  To  make  all  needful  rules,  regulations,  and  by-laws  for  the  trans- 
action of  its  business  and  the  management  of  its  affairs. 

5.  To  appoint  such  officers  and  agents  as  it  may  deem  necessary  and 
the  nature  of  its  business  may  require,  prescribing  their  duties,  fixing 
their  compensation,  and  removable  at  pleasure. 

6.  To  provide  for  the  transfer  of  its  stock,  and  to  make  such  by-laws 
as  may  be  deemed  necessary  for  the  creation  and  preservation  of  a  lien 
upon  the  stock  of  stockholders  for  all  indebtedness  or  liabilities  they 
may  incur  to  or  with  the  corporation. 

7.  To  cause  such  examination  and  surveys  for  its  proposed  railroad  to 
be  made  as  may  be  necessary  to  the  selection  of  the  most  advantageous 
route,  and,  for  such  purpose,  by  ita  officers  or  agents  and  servants,  to 
enter  upon  the  lands  or  waters  of  any  person,  but  subject  to  liability  for 
all  damages  which  shall  be  done  thereto. 

8.  To  acquire  and  hold,  by  gift  or  purchase,  or  in  payment  of  subscrip- 
tions for  stock,  or  by  condemnation  in  the  mode  prescribed  by  law,  such 
lands  as  may  be  necessary  for  a  way  and  right  of  way  not  exceeding  one 
hundred  feet  in  width  throughout  the  entire  length  of  the  road,  with 
the  right  to  cut  down  and  remove  all  such  trees  and  undergrowth  out- 
side thereof  as  might,  by  falling  upon  or  shading  the  roadway,  injure 
the  same. 

9.  To  acquire  and  hold,  by  gift  or  purchase,  or  in  payment  of  subscrip- 


426  ORIGINAL    CHARTER    M.     T.    &    A.    BRANCH 

tions  for  stock,  such  other  lands,  or  any  interest  therein,  as  may  be  nec- 
essary in  making  heavy  excavations  or  embankments,  or  for  the  purpose 
of  wasting  materials  from  earth  excavations,  or  for  borrowing  earth  or 
other  materials  for  the  construction  of  embankments,  or  for  the  protec- 
tion and  safety  of  the  roadway. 

10.  To  acquire  and  hold,  by  gift  or  purchase,  or  in  payment  of  sub- 
scriptions  for  stock,   lands   for  building  depots,   side  tracks,  machine 
shops,  car  factories,  and  other  buildings  necessary  and  incident  to  its 
business. 

11.  To  consolidate  with   any  railroad  corporation  now  existing,   or 
which  may  hereafter  be  organized  under  the  laws  of  this  state,  in  the 
mode  and  under  the  conditions  and  terms  hereinafter  prescribed. 

12.  To  purchase  or  lease  or  to  aid  in  the  construction  of  any  railroad 
connecting  with  its  own  road 

13.  To  increase  or  decrease  its  capital  stock  in  the  mode  and  upon  the 
terms  and  conditions  hereinafter  prescribed. 

14.  To  borrow  money  for  the  purpose  of  building  or  constructing  or 
operating  its  road,  or  for  the  payment  of  debts  contracted  for  such  pur- 
pose, or  to  secure  the  payment  of  debts  contracted  in  the  building,  con- 
structing, operating,  or  maintaining  its  road,  and  in  the  carrying  on  of 
the  business  thereof,  or  in  the  acquisition  of  property  for  its  uses,  by 
mortgage  or  deed  of  trust  of  its  franchises  and  its  property,  real  or  per- 
sonal, and  for  money  borrowed,  or  for  any  of  its  debts,  may  make  and 
issue  negotiable  bonds,  or  bills  of  exchange,  or  promissory  notes  in  any 
form,  or  other  proper  evidences  thereof. 

§  1581.  Right  to  cross  navigable  streams;  to  use,  cross  or  change 
public  roads. — The  corporation  is  authorized,  in  the  construction  of  its 
road,  to  cross  navigable  streams  or  waters,  but  in  the  erection  and  con- 
struction of  bridges,  trestles,  or  other  structures,  must  nut  impair  the 
navigation  of  such  streams  or  waters;  and  the  corporation  is  also  author- 
ized to  use,  or  to  cross,  or  to  change  public  roads,  when  necessary  in  the 
building,  construction,  or  maintenace  of  its  roadway  or  track,  but  must 
place  the  public  road  used,  or  crossed,  or  changed,  in  a  condition  satis- 
factory to  the  authorities  of  the  county  having  control  thereof;  but  where 
practicable  the  track  of  the  railroad  must  go  over  or  under  the  public 
roadway.  Code,  1896,  g  1163. 

Crossings  or  intersections  of  other  railroads  or  street  railways.— By  Acts  Ala.,  1892-93, 
p.  93,  railroad  corporations  were  granted  authority  "to  cross  or  intersect  any  railroad  or 
street  railway,  and  if  such  crossing  or  intersection  cannot  be  made  by  contract  or  agree- 
ment with  the  corporation,  association,  or  person  having  and  controlling  the  railroad  or 
street  railway  to  be  crossed,  or  with  which  an  intersection  is  to  be  made,  either  party  may 
proceed,  in  accordance  with  the  provisions  of  art.  2,  title  2,  ch.  15.  of  the  Code  of  Alabama, 
as  amended  by  an  act  to  repeal  §3210  and  to  amend  §§3211,3312.  3214,  3215,  3216,  and  3217 
of  the  Code,  approved  February  18,  1890,  and  all  other  laws  relating  to  the  condem- 
nation of  lands  for  public  uses  (the  provisions  of  which  are  hereby  made  applicable) 
to  have  an  assessment  and  ascertainment  of  the  damages  which  may  accrue  to  said  corpo- 
ration or  person  by  reason  of  said  crossing  or  intersection.  The  notice  required  by  §3209 
may  be  served  on  any  agent  of  said  railroad  corporation  in  the  county  where  the  proceed- 
ings are  instituted.  Acts  Ala.,  1892-93,  p.  93;  Code  1896,  §  1165. 

g  1583.    Consolidation  of  railroad  corporations. — [This  section,  with 


NASHVILLE,    CHATTANOOGA    A   ST.    LOUIS    RAILWAY.         427 

the  amendments  passed  by  acts  1886,  p.  166,  and  acts,  1890-91,  p.  970, 
authorized  the  consolidation  of  railroad  companies  by  a  method  therein 
set  out.] 

5  1586.  Aid  to,  or  purchase  and  lease  of,  other  roads. — This  section, 
as  amended  by  acts  1890-91,  p.  568,  provided  a  method  whereby  one  rail- 
road company  could  extend  aid  to  another  in  its  construction  in  order 
to  form  a  connection,  or  could  lease  or  purchase  another,  if  their  lines 
were  continuous  or  connected,  as  well  as  enter  into  any  arrangement 
for  their  common  benefit,  in  a  manner  therein  set  out.  See  section  itself, 
also  Code  1896.  $  1170. 

5  1587.  Lines  may  be  extended,  or  branch  roads  constructed. — A 
corporation  now  existing,  or  which  may  hereafter  be  organized  for  the 
building,  constructing,  and  operating  a  railroad,  has  authority,  for  the 
purpose  of  extending  its  line  or  forming  a  connection,  to  acquire,  hold, 
and  operate  a  railroad  without  the  state  or  within  the  state,  may  extend 
its  road,  or  may  build,  construct,  and  operate  branch  roads  from  any 
point  or  points  on  its  line. 

g  1588.  Mode  of  making  purchase  or  extension,  or  of  construction 
of  branch  roads. — Thia  section,  as  amended  by  Acts  1888-89,  p.  75.  pro- 
vided a  method  whereby  one  railroad  company  could  purchase,  make 
extensions,  or  construct  branch  roads.  See  section  itself;  also  Code  1896, 
J1173. 

§  1589.  Increase  of  capital  stock. — This  section  provided  for  increas- 
ing capital  stock.  See  section  itself. 

{  1590.  Increase  of  bonded  indebtedness. — This  section  provided  for 
increasing  the  bonded  debt.  See  section  itself. 

8 1596.  Purchasers  of  railroads  may  organize  as  a  corporation. — 
The  purchasers  of  a  railroad  existing  under  the  laws  of  this  state,  not 
being  less  than  seven  in  number,  at  any  judicial  sale,  or  other  sale  by 
authority  of  law,  made  since  the  adoption  of  the  present  constitution,  or 
which  may  be  hereafter  made,  may  organize  as  a  corporation,  entitling 
themselves,  their  associates  and  successors,  to  all  the  powers,  rights, 
and  capacity  of  a  corporation  organized  under  the  provisions  of  this 
chapter. 

{  1597  et  seq.    [Provided  a  Mode  of  Organization.] 

1.  May  sell  all  their  property,  when.— By  Acts  1800-01,  p.  1080,  railroads  chartered  under 
the  Alabama  laws,  whose  entire  capital  stock  is  owned  by  a  railroad  company  chartered  by 
another  state,  are  allowed  to  sell  to  such  company  their  entire  property,  roadbeds,  rights, 
and/rant'Ato*.  by  a  method  therein  provided. 

2.  Railroads  chartered  in  other  states  may  aid  in  constructing  or  extending  roads  in  Alabama. 
—By  Acts  1888-87,  p.  63.    See  act  itself. 

3.  Franchise  forfeited  by  nonuser  for  five  consecutive  years.— By  $  1187  of  the  Code  of  Ala- 
bama, 1896,  the  franchise  of  a  railroad  company  is  forfeited  by  nonuser  for  five  consecutive 
years. 

Name. — The  name  and  style  of  the  said  corporation*  proposed 
is  "The  Decatur,  Chesapeake  &  New  Orleans  Railway  Com- 
pany. ' ' 

*Filed  for  record.  August  21,  1888;  recorded  May  3,  1889 — C.  C.  LANG- 
DON,  Secretary  of  State. 


428  ORIGINAL    CHARTER    M.    T.     &    A.     BRANCH 

Name,  incorporation. — The  company  was  also  chartered  in  Tennes- 
see. See  preceding  charter.  It  subsequently  issued  bonds  secured  by 
mortgage  which  was  foreclosed.  At  the  sale  a  re-organization  commit- 
tee bought  in  its  property,  franchises,  etc.,  and  as  such  purchasers 
took  the  necessary  steps  to  become  incorporated  under  §1514  of  Shan- 
non's Code  of  Tennessee  and  of  \  1598  of  the  Code  of  Alabama,  1886,  as 
the  "  Middle  Tennessee  &  Alabama  Railway  Company." 

Route. — The  terminal  points  of  the  proposed  road  are  some 
point  or  points  on  the  boundary  line  of  the  State  of  Tennessee, 
in  the  county  of  Lincoln,  in  said  state,  separating  the  said 
county  of  Lincoln  from  the  county  of  Madison,  in  the  State  of 
Alabama,  running  thence  to  some  point  or  points  on  the  Ten- 
nessee river,  in  the  county  of  Limestone,  in  the  State  of 
Alabama,  opposite  to  the  said  town  of  Decatur,  or  of  New  De- 
catur,  and  thence  across  the  Tennessee  river,  to  one  or  both  of 
said  towns,  and  thence  south  and  southwest  to  the  eastern 
boundary  line  of  the  State  of  Mississippi.  The  capital  stock  of 
said  proposed  corporation  shall  be  two  hundred  thousand  dol- 
lars. 

August,  8,  1888.     (Signed).  H.   M.   MOTZ, 

J.  R.  BOYD, 
S.  H.  GRUBER, 
A.  F.   MURRAY, 
J.  T.   CROSS, 
JOHN  S.    REED, 
L.   M.   FULK. 

DECATUR,  CHESAPEAKE  &  NEW  ORLEANS 

RAILWAY. 

Meeting  fOt  corporation. — The  commissioners  to  whom  the 
secretary  of  state  issued  a  commission  authorizing  them  to 
open  books  of  subscription  to  the  capital  stock  of  the  Decatur, 
Chesapeake  &  New  Orleans  Railway  Company,  ten  per  cent,  of 
the  proposed  capital  stock  having  been  subscribed  in  good 
faith  by  subscribers  of  whose  solvency  the  commissioners  were 
satisfied,  called  the  said  subscribers  together  on  this  day  at  the 
Tavern  in  the  town  of  New  Decatur,  and  all  the  subscribers 
being  present  in  person,  the  following  proceedings  were  had: 


NASHVILLE,    CHATTANOOGA    A   ST.    LOUIS    RAILWAY.         429 

Maj.  Gordon  moved  that  Mr.  Breck  Jones  be  elected  chair- 
man; duly  seconded.  The  vote  being  taken,  Mr.  Jones  was 
elected.  Mr.  Murray  nominated  Mr.  W.  \V.  Hedges  for  sec- 
retary; duly  seconded,  and  Mr.  Hedges  was  duly  elected  sec- 
retary. 

The  chairman  read  the  commission  from  the  secretary  of 
state  to  Mr.  A.  F.  Murray,  J.  T.  Cross,  etc.,  as  commissioners 
to  open  books  of  subscription,  dated  December  7,  1888;  also 
the  report  of  the  commissioners,  which  included  the  subscrip- 
tion list. 

It  was  announced  that  the  articles  fixing  the  capital  stock  of 
the  company  was  tiled  with  the  secretary  of  state*  when  the  ap- 
plication was  made.  The  capital  stock  was  then  fixed  at  $200,- 
000.  The  subscription  list  having  been  read,  and  it  appearing 
that  more  than  ten  per  cent,  of  the  capital  stock  had  teen  sub- 
scribed, and  that  all  subscribers  were  present,  the  chairman 
announced  that  it  would  be  in  order  to  organize. 

Moved  by  Judge  Bond,  duly  seconded,  that  we  now  proceed 
with  the  election  of  the  seven  directors.  Motion  carried. 

The  following  subscribers  to  the  capital  stock  were  nomi- 
nated: A.  F.  Murray,  W.  W.  Hedges,  John  S.  Reed,  J.  T. 
Cross,  H.  G.  Bond,  E.  C.  Gordon,  and  Breck  Jones,  and  duly 
elected  as  directors  of  the  company.  The  chairman  suggested 
A.  F.  Murray  to  receive  subscriptions.  Duly  seconded,  and, 
by  vote,  Mr.  Murray  was  duly  elected. 

The  chairman  suggested  that  nothing  more  could  be  done  by 
the  subscribers  until  the  proceedings  of  this  meeting  were  writ- 
ten out  and  signed  and  acknowledged,  as  provided  by  law,  and, 
on  motion,  the  meeting  adjourned  to  ten  o'clock  to-morrow 
morning,  to  meet  at  the  office  of  the  president  of  the  land  com- 
pany, in  the  Bond  block  in  this  town. 

W.  W.  HEDGES,  BRECK  JONES, 

Secretary.  Chairman. 

April  25,  1889. 


•Filed  for  record,  April  27,   1899;  recorded  May  6,  1889.— C.  C.   LANG- 
DON,  Secretary  of  State. 


430  ORIGINAL    CHARTER    M.     T.    &    A.    BRANCH 

The  subscribers  to  the  capital  stock  of  the  said  Decatur, 
Chesapeake  &  New  Orleans  Railway  met  at  the  Bond  block  on 
this  the  twenty-sixth  day  of  April,  1889,  pursuant  to  adjourn- 
ment, and,  all  being  present,  proceeded  to  sign  and  acknowl- 
edge the  above  proceedings. 

THE  DECATUR  LAND,  IMPROVEMENT  &  FURNACE  Co. , 

By  C.  C.  HARRIS,  President. 
BRECK  JONES, 
H.  G.  BOND, 
J.  T.  CROSS, 
E.  C.  GORDON, 
W.  W.  HEDGES, 
A.  F.  MURRAY, 
JNO.  S.  REED. 
STATE  OF  ALABAMA,  ) 
Morgan  County.       \ 

This  day  appeared  before  me,  E.  M.  Russell,  judge  of  the 
court  of  probate  of  the  county  of  Morgan,  State  of  Alabama, 
The  Decatur  Land,  Improvement  &  Furnace  Company,  by  C. 
C.  Harris,  president,  Breck  .Tones,  H.  G.  Bond,  J.  T.  Cross, 
E.  C.  Gordon,  W.  W.  Hedges,  A.  F.  Murray,  John  S.  Reed, 
who  are  known  to  me  personally,  and  who  acknowledged  that, 
being  informed  of  the  contents  of  the  foregoing  instrument, 
they  signed  the  same  on  the  day  the  same  bears  date. 

In  witness  whereof,  I  hereunto  set  my  hand  and  affix  my 
seal  of  office,  this  April  26,  1889. 

E.  M.  RUSSELL, 
[SEAL.  ]  Judge  of  Probate,  Morgan  County. 

Subscribers  tO  Capital  StOCk. — The  undersigned  hereby  sub- 
scribe for  the  number  of  shares  set  opposite  to  their  respective 
names,  of  the  capital  stock  of  the  Decatur,  Chesapeake  &  New 
Orleans  Railway  Company,  a  corporation  organized  under  the 
laws  of  the  State  of  Alabama,  and  we  respectfully  agree  to  pay 
for  the  said  shares  as  required  by  law,  and  as  payments  are 
called  for  by  the  board  of  directors,  and  in  the  manner  ex- 
pressed in  the  subscriptions. 

Decatur  Land,  Improvement  &  Furnace  Company  subscribes 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         431 

for  seventy  (70)  shares  of  the  par  value  of  one  hundred  dollars 
each.  This  subscription  is  payable  only  by  a  release  of  the 
railroad  company  from  all  liabilities  to  the  land  company  for 
money  expended  by  the  land  company  for  the  surveys  of  the 
route  and  road  of  said  railroad  company,  and  the  maps  and 
profile  thereof,  and  the  said  release  will  be  executed  when  the 
road  of  said  railroad  company  is  completed  to  a  junction  with 
the  Memphis  &  Charleston  Railroad  Company,  and  the  trains 
are  running  into  the  town  of  New  Decatur.  ($7,000.) 

J.  N.  DOWLAND,  C.  C.  HARRIS, 

Secretary.  President. 

Decatur  Land,  Improvement  &  Furnace  Company  subscribe 
for  one  hundred  and  twenty-five  shares,  of  the  par  value  of  one 
hundred  dollars  each.  This  subscription  is  payable  in  land, 
viz. :  Twenty-five  acres  lying  in  the  west  half  of  the  northwest 
quarter  of  section  twenty-six,  township  five  (5),  range  five  (5) 
west.  Bounded  on  the  west  by  the  section  line  between  sec- 
tions twenty-six  and  twenty-seven,  and  extending  in  the  shape 
of  a  parallelogram  the  full  length  of  the  tract  of  land  conveyed 
to  this  company  by  Win.  Moseley  (through  R.  C.  Brickell,  Jas. 
R.  Stevens,  and  C.  C.  Harris,  trustees,  and  E.  C.  Gordon  and 
Ella  C.  Gordon),  of  the  value  of  twelve  thousand  five  hundred 
dollars.  The  said  land  to  be  conveyed  to  the  railroad  company 
when  the  road  of  said  company  is  completed  to  a  junction 
thereof  with  the  Memphis  &  Charleston  Railroad,  and  the  trains 
of  said  company  are  running  into  the  town  of  New  Decatur, 
Alabama.  ($12,500.) 

J.  H.  DOWLAND,  C.  C.  HARRIS, 

Secretary.  President. 

E.  C.  Gordon  subscribes  for  one  share  of  the  par  value  of 
one  hundred  dollars.  This  subscription  is  payable  in  land,  to 
wit:  Lot  twenty- nine  (29),  block  ninety  (90),  of  the  Wilder 
addition  to  New  Decatur,  Ala.,  map  thereof  being  dated  April, 
16,  1888,  and  filed  in  the  office  of  the  judge  of  probate  Mor- 
gan county,  Ala.  The  said  land  to  be  conveyed  to  the  railroad 
company  when  the  road  of  said  company  is  completed  to  a 
juncture  thereof  with  the  Memphis  &  Charleston  railroad,  and 


432  ORIGINAL    CHARTER    M.    T.     &    A.    BRANCH 

the  trains  of  said  company  are  running  into  the  town  of  New 
Decatur,  Alabama.  ($100.00.)  E.  C.  GORDON. 

Breck  Jones  subscribes  for  one  share  of  the  par  value  of  one 
hundred  dollars.  This  subscription  is  payable  in  land,  to  wit: 
Lot  thirty  of  block  ninety  (90)  of  the  Wilder  addition  to  New 
Decatur,  Ala.,  map  thereof  being  dated  April  16,  1888,  and 
filed  in  the  office  of  the  judge  of  probate  of  Morgan  county, 
Ala.  The  said  land  to  be  conveyed  to  the  railroad  company 
when  the  road  of  said  company  is  completed  to  a  junction 
thereof  with  the  Memphis  &  Charleston  railroad,  and  the  trains 
of  said  company  are  running  into  the  town  of  New  Decatur, 
Alabama.  (§100.00.)  BRECK  JONES. 

We,  the  undersigned,  hereby  subscribe  to  the  capital  stock 
of  the  Decatur,  Chesapeake  &  New  Orleans  Railroad  Company, 
a  corporation  to  be  organized  under  the  laws  of  the  State  of 
Alabama,  the  sum  or  amount  set  opposite  our  respective 
names,  payable  only  and  when  the  line  of  said  railroad  shall  be 
constructed  and  ready  for  the  running  of  cars  from  the  town 
of  Decatur  to  the  line  of  the  State  of  Tennessee. 

A.   F.  Murray,  one  share $10000 

W.  W.  Hedges,  one  share 100  00 

John  S.  Reed,  one  share 100  00 

J.  T.  Cross,  one  share 100  00 

H.  G.  Bond,  one  share 100  00 

Certificate. — STATE  OF  ALABAMA,  MORGAN  COUNTY.  Before 
me,  W.  T.  Mulligan,  a  notary  public  and  for  the  said  county 
and  state,  this  day  personally  appeared  Albert  F.  Murray, 
who,  being  duly  sworn,  deposes  and  saith  that  the  foregoing 
is  a  true  and  correct  copy  of  the  subscriptions  to  the  capital 
stock  of  the  Decatur,  Chesapeake  &  New  Orleans  Railway 
Company;  that  he  was  duly  elected  and  appointed  by  the  said 
subscribers  to  receive  the  said  subscriptions  from  the  commis- 
sioners appointed  and  commissioned  by  the  secretary  of  state 
to  open  books  of  subscription  to  the  capital  stock  of  said  rail- 
way company,  and  the  originals  of  the  said  subscriptions  affiant 
has  delivered  to  the  secretary  of  said  railway  company;  that 
from  A.  F.  Murray,  W.  W.  Hedges,  John  S.  Reed,  J.  T. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         433 

Cross,  and  H.  C.  Bond,  whose  subscriptions  are  payable  in 
money,  affiant  received  two  per  cent,  on  their  respective  sub- 
scriptions in  money,  which  affiant  deposited  with  the  secretary 
of  said  railway  company;  that  from  the  Decatur  Land  Im- 
provement &  Furnace  Company  affiant  received  covenants  in 
writing  for  the  execution  of  the  release  and  the  conveyance  of 
the  land  in  the  subscription  of  said  company  specified  and  de- 
scribed; that  from  Breck  Jones  and  E.  C.  Gordon  affian 
received  their  respective  covenants  in  writing  for  the  convey- 
ance of  the  lands  in  their  respective  subscriptions  described, 
which  said  several  covenants  have  been  by  affiant  delivered  to 
the  secretary  of  said  company.  A.  F.  MURRAY. 

Sworn  to  and  subscribed  before  me,  April  26,  1889. 

W.  T.  MULLIGAN,  Notary  Public. 

THE  STATE  OF  ALABAMA, 

OFFICE  OF  SECRETARY  OF  STATE. 

WHEREAS,  A.  F.  Murray,  J.  T.  Cross,  John  T.  Reed,  H.  M. 
Motz,  J.  K.  Boyd,  S.  H.  Gruber,  and  L.  M.  Fulk  were  here- 
tofore, to  wit,  on  the  7th  day  of  December,  1888,  duly  ap- 
pointed and  constituted  a  board  of  commissioners  to  open  books 
of  subscription  to  the  capital  stock  of  the  Decatur,  Chesapeake 
&  New  Orleans  Railway  Company;  and, 

WHEREAS,  Said  commissioners  have  filed  in  this  office  their 
certificate  setting  forth  that  they  have  in  all  respects  complied 
with  the  requirements  of  section  1578  of  the  Code  of  Alabama, 
and  that  said  Decatur,  Chesapeake  &  New  Orleans  Railway 
Company  has  been  organized  as  provided  by  said  section  1578 
of  the  code: 

Incorporation. — Now,  therefore,  I,  C.  C.  Langdon,  secre- 
tary of  state,  do  hereby  certify  that  the  subscribers  to  said 
declaration  of  incorporation,  their  associaj#s  and  successors  in 
office,  are  duly  organized  as  a  corporation,  under  the  name  and 
for  the  purpose  set  forth  in  said  declaration,  and  are  fully 
authorized  to  commence  business  under  their  charter,  as  pro- 
vided by  the  laws  of  Alabama  governing  the  organization  of 
railroad  companies. 

28 


434  ORIGINAL    CHARTER    M.    T.    &    A.    BRANCH 

Witness  my  hand  and  the  great  seal  of  the  state,  at  the  cap- 
itol,  in  the  city  of  Montgomery,  this  the  27th  day  of  April,  one 
thousand  eight  hundred  and  eighty-nine. 

[SEAL.  ]  C.  C.  LANGDON,  Secretary  of  State. 

The  foregoing  charter  is  registered  in  the  secretary  of  state's  office  of 
Alabama  in  corporate  book  "C,"  p.  126-9. 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.         435 


CHAPTER  XXXV. 

DEED  TO  AND  ACTS  RELATING  TO  DECATUR,  CHESAPEAKE  & 

NEW  ORLEANS  RAILWAY,  AND  TO  ITS  SUCCESSOR,  THE 

MIDDLE  TENNESSEE  &  ALABAMA  RAILWAY. 

JOSEPH  DICKSON  et  al.  \ 

TO — Deed. 
NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY.  ) 

For  and  in  consideration  of  three  hundred  of  the  first  consol- 
idated mortgage  five  per  cent,  bonds  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  of  a  thousand  dollars  ($1,000)  eachy 
together  with  interest  thereon,  at  the  rate  of  five  per  cent.,  from 
July  1,  1897,  until  this  date,  paid  and  to  be  paid  as  hereinafter 
set  out,  I,  Joseph  Dickson  and  Pauline  M.  Dickson,  his  wife, 
both  of  the  city  of  St.  Louis,  State  of  Missouri,  have  this  day 
bargained  and  sold,  and  by  these  presents  do  transfer  and  con- 
vey, unto  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  its 
successors  and  assigns,  the  following  described  property,  lying 
and  being  situated  in  the  States  of  Tennessee  and  Alabama,  and 
more  particularly  described  as  follows: 

All  the  line  of  railway  formerly  of  the  Decatur,  Chesapeake 
&  New  Orleans  Railway  Company,  situated,  lying,  and  being 
within  the  counties  of  Bedford,  Moore,  and  Lincoln,  Descri  t,on 
in  the  State  of  Tennessee,  and  in  the  counties  of  of  vnveny. 
Madison,  Limestone,  and  Morgan,  in  the  State  of  Alabama, 
constructed  and  to  be  constructed  between  the  points  hereinafter 
named,  to  wit:  Beginning  at  Shelbyville,  in  the  county  of  Bed- 
ford, in  the  State  of  Tennessee,  and  running  thence  through  the 
counties  of  Bedford,  Moore,  and  Lincoln  to  Fayetteville,  in  the 
said  county  of  Lincoln,  in  the  State  of  Tennessee,  and  running 
partly  through  the  county  of  Lincoln,  as  aforesaid,  and  through 
the  counties  of  Madison,  Limestone,  and  Morgan,  in  the  State 
of  Alabama,  to  Decatur,  in  said  State  of  Alabama,  a  total  dis- 
tance of  about  seventy-eight  (78)  miles;  together  with  the  cor- 
porate property  of  every  name,  kind,  and  description  at  any 


436   DEED  AND  ACTS  RELATING  TO  M.  T.  &  A.  BRANCH   . 

time  owned  by  the  Decatur,  Chesapeake  &  New  Orleans  Rail- 
way Company,  or  acquired  by  it,  or  owned  or  acquired  at 
any  time  by  the  Middle  Tennessee  and  Alabama  Railway  Com- 
pany, or  used  by  it  or  them  in  constructing,  managing,  or 
operating  its  said  line-  of  railway  and  appertaining  thereto; 
and  all  estates  and  interests  therein,  including  all  the  right  of 
way  therefor,  and  the  roadbed  of  said  railway,  the  entire 
superstructure  thereof  and  track  at  any  time  placed  thereon, 
and  all  stations,  depots,  shops,  yards,  and  other  ground,  at 
any  time  used  in  connection  therewith,  and  all  steel  and  iron 
rails,  ties,  railways,  sidings,  switches,  bridges,  fences,  turn- 
tables, water-tanks,  viaducts,  culverts,  passenger  and  other 
depots,  station  houses,  warehouses,  freight  houses,  car  and 
engine  houses,  machine  shops,  docks,  and  -all  other  structures, 
buildings,  and  fixtures  whatsoever;  together  with  all  the  equip- 
ments and  rolling  stock,  locomotives  and  cars  of  every 
description,  machinery,  tools,  implements,  and  materials  for- 
merly of  the  said  Decatur,  Chesapeake  &  New  Orleans  Railway 
Company,  and  thereafter  of  the  Middle  Tennessee  &  Alabama 
Railway  Company,  and  now  owned  by  the  said  Joseph  Dickson, 
owned  or  acquired  for  constructing,  maintaining,  operating, 
replacing,  improving  or  repairing  the  said  line  of  railway,  or 
its  appurtenances,  or  any  part  thereof,  or  in  and  for  the  busi- 
ness of  said  railway;  and  all  the  real  estate  of  the  Middle 
Tennessee  &  Alabama  Railway  Company  or  the  said  Joseph 
Dickson,  wherever  the  same  may  be  situated  in  and  through 
said  counties  and  states  as  aforesaid,  now  held  or  acquired  by 
it  or  him,  or  any  time  hereafter  held  or  acquired  as  a  part  of 
said  railway,  rolling  stock,  right  of  way,  or  appurtenances. 

Also  all  the  rights,  franchises,  privileges,  immunities,  and 
Franchises  easements,  and  all  leases,  leaseholds,  rights  of  the 
pass-  use  of  other  railways,  and  all  estates,  real,  per- 

sonal or  mixed,  at  any  time  held  or  acquired  by  the  said  Deca- 
tur, Chesapeake  &  New  Orleans  Railway  Company,  or  held, 
owned  or  acquired  by  the  Middle  Tennessee  &  Alabama  Rail- 
way Company,  or  by  the  said  Joseph  Dickson,  or  hereafter 
held,  possessed,  or  acquired  by  them,  or  any  one  of  them,  in 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         437 

connection  with  said  line  of  railway;  and  all  rente,  issues,  profits, 
incomes,  and  proceeds  of  the  said  line  of  railway,  or  arising 
from  any  of  the  aforesaid  proj>erty,  together  with  all  and  singu- 
lar the  tenements,  hereditaments,  and  appurtenances  thereto 
belonging  or  in  any  way  appertaining  thereto;  and  all  the  rev- 
enues, reversions,  and  remainders,  choses  in  action,  estates, 
rights,  titles,  interests,  properties,  possessions,  claims  and  de- 
mands whatsoever,  as  well  in  law  as  in  equity,  formerly  of  the 
said  Decatur,  Chesapeake  &  New  Orleans  Railway  Company, 
or  of  the  Middle  Tennessee  &  Alabama  Railway  Company,  or 
of  the  said  Joseph  Dickson,  in  and  to  the  aforesaid  property 
and  premises,  or  any  part  thereof,  and  all  rights,  powers,  and 
privileges  and  franchises  now  or  at  any  time  hereafter  held  or 
acquired  by  the  Middle  Tennessee  &  Alabama  Railway  Com- 
pany or  the  said  Joseph  Dickson,  connected  with  or  relating 
to  said  line  of  railway,  or  other  property  hereby  conveyed  or 
intended  to  be  conveyed  by  the  deeds  of  trust,  which  are  ordered 
to  be  foreclosed  under  said  decree,  for  the  uses  and  purposes 
thereof,  or  for  the  construction,  maintenance,  uses,  or  enjoy- 
ment of  the  same;  and  all  corporate  franchises  of  the  Middle 
Tennessee  &  Alabama  Railway  Company  of  every  nature,  in- 
cluding the  franchise  to  be  a  corporation;  also  all  the  lands, 
tenements,  and  hereditaments,  rights  of  way,  and  easements 
now  held  or  hereafter  acquired  by  the  Middle  Tennessee  &  Ala- 
bama Railway  Company,  or  the  said  Joseph  Dickson,  for  the 
purposes  of  said  line  of  railway,  and  for  the  purposes  of  .depots, 
stations,  turnouts,  rights  of  way,  or  terminal  facilities  in  con- 
nection with  said  line  of  railway.  It  being  the  same  property 
conveyed  to  the  said  Joseph  Dickson  by  H.  M.  Doak,  as  spe- 
cial master  of  the  circuit  court  of  the  United  States  for  the 
middle  district  of  Tennessee,  and  the  circuit  court  of  the  United 
States  for  the  northern  district  of  Alabama,  by  deed  dated  May 
17,  1897,  which  deed  is  registered  in  the  R.  O.  B.  C.,  Tenn.,  in 
book  No.  5,  p.  54;  in  the  R.  O.  M.  C. ,  Tenn.,  in  book  No.  6, 
pp.  236,  244;  in  the  R.  O.  L.  C.,  Tenn.,  in  deed  book  No. 
"  EE,"  p.  85-91;  in  the  judge  of  probate  court  of  Madison 
county,  Alabama,  in  vol.  80  of  deeds,  p.  429,  to  which  refer- 
ence is  also  made  for  a  more  perfect  description. 


438   DEED  AND  ACTS  RELATING  TO  M.  T.  &  A.  BRANCH 

Together  with  the  right  of  way  over  the  several  tracts  of 
ground  conveyed  by  R.  D.  Warren  and  Earnest  Caldwell  to 
the  said  Joseph  Dickson  by  deed  dated  June  28,  1897,  and 
registered  in  the  register's  office  of  Lincoln  county,  Tenn.,  in 
deed  book  "  EE, "  p.  67,  to  which  reference  is  here  made  for 
a  more  perfect  description,  and  which  several  tracts  of  ground 
were  also  transferred  to  the  said  R.  D.  Warren  and  Earnest 
Caldwell  by  the  following  mentioned  parties: 

(1)  A  right  of  way  through  the  lands  of  N.  Waites,  being 
sixty-six  feet  in  width,  said  deed  being  executed  January  25, 
1893,    and  registered  in  R.   O.   L.   C.,  Tenn.,   in  deed  book 
"  BB,"  p.  200-1,  to  which  reference  is  here  made  for  a  more 
perfect  description. 

(2)  A  right  of  way  through  the  lands  of  James  H.  Deford, 
one  hundred  feet  in  width,  a  deed  to  which  was  executed  Janu- 
ary 27,   1893,  and  registered  in  the  R.   O.  L.   C.,  Tenn.,   in 
deed  book  "BB,"  p.  221-2,   reference  to  which  is  here  made 
for  a  more  perfect  description. 

(3)  A  right  of  way  through  the  lands  of  M.  J.  Farrar,  be- 
ing fifty  feet  in  width  on  either  side  of  center  of  the  track,  a 
deed  to  which  was  executed  January  27,  1893,  and  registered 
in  the  R.  O.  L.  C.,  Tenn.,  in  deed  book  "BB,"  p.  216-17,  to 
which  reference  is  here  made  for  a  more  perfect  description. 

(4)  A  right  of  way  through  the  lands  of  A.  N.  Bryan,   be- 
ing one  hundred  feet  in  width,  a  deed  to  which  was  executed 
January  7,  1893,  and  registered  in  the  R.  O.  L.  C.,  Tenn.,  in 
book   "  BB, "  p.  219-20,  to  which  reference  is  here  made  for 
a  more  perfect  description. 

(5)  A  right  of  way  over  the  lands  of  Rufus   Smith,   being 
sixty  feet  in  width,  a  deed  to  which  was  executed  January  28, 
1892,  and  registered  in  the  register's  office  of  Lincoln  county, 
Tenn.,  in  deed  book  "B  B,"  p.  205-6,   to  which  reference  is 
here  made  for  a  more  perfect  description. 

(6)  A  right  of  way  over  the  lands  of  D.  A.  Hobbs,  of  fifty 
feet  in  width,  a  deed  to  which  was  executed  January  28,  1893, 
and  registered  in  the  register's  office  of  Lincoln  county,  Tenn., 
in  deed  book  "  B  B, "  p.  204-5,  and  to  which  reference  is  here 
made  for  a  more  perfect  description. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         439 

(7)  A  right  of  way  over  the  lands  of  Parkinson  and  Faulk- 
inberry,   of  one  hundred  feet  in  width,  a  deed  to  which  was 
executed  January  28,    1893,  and  registered  in  the  register's 
office   of   Lincoln  county,    Tenn.,    in  deed  book    "BB,"   p. 
218-19,   to  which  reference  is  here  made  for  a  more  perfect 
description. 

(8)  A  right  of  way  through  the  lands  of  Austin  Eslick,  of 
sixty-six  feet  in  width,  a  deed  to  which  was  executed  January 
28,    1893,  and  registered  in  the  register's  office  of   Lincoln 
county,  Tenn.,  in  deed  book  "BB,"  p.  194-5,  to  which  refer- 
ence is  here  made  for  a  more  perfect  description. 

(9)  A  right  of  way  through  the  lands  of  R.   L.   Farrar,  of 
sixty  feet  in  width,  a  deed  to  which  was  executed  January  27, 
1893,  and  registered  in  the  register's  office  of  Lincoln  county, 
Tenn.,   in  deed  book   "B  B,"  p.  193-4,  to  which  reference  is 
here  made  for  a  more  perfect  description. 

(10.)  A  right  of  way  over  the  lands  of  M.  N.  Rowell  and 
N.  A.  Rowell,  of  one  hundred  feet  in  width,  a  deed  to  which 
was  executed  January  27,  1892,  and  registered  in  the  register's 
office  of  Lincoln  county,  Tenn.,  in  deed  book  "  B  B,"  p.  202-3, 
to  which  reference  is  here  made  for  a  more  perfect  description. 

(11)  A  right  of  way  over  the  lands  of  W.  R.  Bryant,  of  one 
hundred  feet  in  width,  a  deed  to  which  was  executed  January 
27,    1893,   and   registered  in  the  register's  office  of  Lincoln 
county,  Tenn.,  in  deed  book  "B  B,"  p.  221,  to  which  refer- 
ence is  here  made  for  a  more  perfect  description. 

(12)  A  right  of  way  over  the  lands  of  H.  D.  Parks,  of  fifty 
feet  in  width,  a  deed  to  which  was  executed  January  25,  1893, 
and  registered  in  the  register's  office  of  Lincoln  county,  Tenn., 
in  deed   book   "B  B,"    p.  189-90,  to  which  reference  is  here 
made  for  a  more  perfect  description. 

(13)  A  right  of  way  over  the  lands  of  J.  C.  Shofner,  of  one 
hundred  feet  in  width,  a  deed  to  which  was  executed  January 
25,    1893,   and  registered   in  the  register's  office  of  Lincoln 
county,  Tenn.,  in  deed  book  "  BB,"  p.  190-1,  to  which  refer- 
ence is  here  made  for  a  more  perfect  description. 

(14)  A  right  of  way  over  the  lands  of  T.  J.  Russell  and  M. 


440   DEED  AND  ACTS  RELATING  TO  M.  T.  &  A.  BRANCH 

E.  Russell,  of  one  hundred  feet  in  width,  a  deed  to  which  was 
executed  January  25,  1893,  and  registered  in  the  register's 
office  of  Lincoln  county,  Tenn.,  in  deed  book  "  B  B,"  p.  191-2. 

(15)  A  right  of  way  over  the  lands  of  N.  C.  Sulser,  of  one 
hundred  feet  in  width,  said  deed  being  executed  January  28, 
1893,  and  registered  in  the  register's  office  of  Lincoln  county, 
Tenn.,  in  deed  book  "B  B, "  p.  201-2,  to  which  reference  is 
here  made  for  a  more  perfect  description. 

Of  the  consideration  above  referred  to,  two  hundred  and 
seventy-five  thousand  dollars  ($275,000)  of  the  said  bonds, 
with  interest  from  July  1,  1897,  have  been  delivered  and  paid 
to  the  said  Joseph  Dickson,  the  receipt  of  which  is  hereby 
acknowledged,  and  the  remaining  twenty-five  thousand  dollars 
($25,000)  of  said  bonds  are  to  be  retained  by  said  Nashville, 
Chattanooga  &  St.  Louis  Railway  until  all  taxes,  liens,  judg- 
ments or  decrees  existing  against  said  properties  herein  con- 
veyed, either  in  the  State  of  Tennessee  or  Alabama,  or  in  the 
federal  courts,  shall  have  been  fully  paid  off,  satisfied  and  dis- 
charged, and  until  all  claims,  demands,  right  of  actions  that 
may  be  a  lien  on  the  said  properties  or  enforceable  against  the 
said  Nashville,  Chattanooga  &  St.  Louis  Railway  by  virtue  of 
its  having  purchased  the  same,  shall  have  been  fully  paid  off, 
settled,  and  discharged  by  the  said  Joseph  Dickson,  and  until 
all  the  terms,  conditions,  and  provisions  of  a  contract  this  day 
entered  into  between  the  said  Joseph  Dickson  and  the  said 
Nashville,  Chattanooga  &  St.  Louis  Railway  have  been  fully 
performed  by  the  said  Joseph  Dickson.  No  lien  is  retained  on 
the  road  or  properties  herein  conveyed,  however,  for  the  pay- 
ment of  said  twenty-five  thousand  dollars  ($25,000)  of  bonds 
so  retained. 

To  have  and  to  hold  the  said  line  of  railway,  rights,  fran- 
chises, privileges,  immunities,  easements,  properties,  leases, 
leaseholds,  rights  of  use  of  other  roads,  estates,  real,  personal 
or  mixed,  with  its  appurtenances,  estates,  title,  and  interests 
thereto  belonging  to  the  said  Nashville,  Chattanooga  &  St. 
Louis  Railway,  its  successors  and  assigns  forever. 

And  we  do  covenant  with  the  said  Nashville,  Chattanooga  & 


NA8HVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         441 

St.  Louis  Railway  that  we  are  lawfully  seized  and  possessed  of 
said  line  of  railway,  rolling  stock,  and  properties  in  fee  simple, 
and  have  a  good  right  to  convey  them,  and  the  same  is  unin- 
cumbered. 

And  we  do  further  covenant  and  bind  ourselves,  our  heirs 
and   representatives,    to   warrant    and  forever  de- 
fend the  title  to  the  said  rolling  stock  and  to  the 
said  line  of  railway,   right  of  way,   privileges  and  franchises 
from  Fayetteville,  Tenn.,  to  Madison  Cross  Roads,   Ala.,  to 
the  Nashville,  Chattanooga  &  St.  Louis  Railway,  its  successors 
and  assigns,  against  the  lawful  claims  of 'all  persons  whomso- 
ever. 

And  we  do  further  covenant  and  bind  ourselves,  our  heirs 
and  representatives,  to  indemnify,  protect  and  hold  harmless 

the  said  Nashville,  Chattanooga  &  St.   Louis  Rail- 

.,  .  •  11    •  warranty, 

way,  its  successors  and  assigns,  against  all  mcuni- 

brances  or  liens  against  the  properties  herein  conveyed, 
existing  by  decree,  judgment  or  petition,  in  any  of  the  courts 
of  Alabama  or  Tennessee,  or  in  the  federal  courts,  or  any  that 
are  prior  to  the  mortgages  of  the  old  Middle  Tennessee  &  Ala- 
bama Railway  Company,  under  which  the  foreclosure  proceed- 
ings were  had. 

We  further  agree  and  bind  ourselves,  our  heirs  and  repre- 
sentatives, to  indemnify  and  protect  and  hold  harmless  the 
said  Nashville,  Chattanooga  &  St.  Louis  Railway  against  all 
claims,  demands,  or  rights  of  action,  either  of  a  legal  or  equi- 
table nature,  or  which  could  be  enforceable  against  the  said 
Nashville,  Chattanooga  &  St.  Louis  Railway  by  virtue  of  its 
purchase  of  said  railway,  rolling  stock,  right  of  way,  real 
estate,  franchises,  etc.,  and  further  warrant  that  30-foot  right 

Of      W4V    £L)dr~ 

the  right  of  way  from  Fayetteville,  Tenn.,  to  Madi-  anteed.  where, 
son  Cross  Roads,  Ala.,  is  of  the  width  of  at  least  thirty  (30) 
feet  on  either  side  of  the  center  of  the  road. 

Witness  our  hands  and  seals,  this  the  thirteenth  day  of  Octo- 
ber, 1897.  JOSEPH  DICKSON, 

PAULINE  M.  DICKSON. 


442     DEED  AND  ACTS  RELATING  TO  M.  T.  A  A.  BRANCH 

STATE  OF  TENNESSEE,  ) 
County  of  Davidson .    f 

Personally  appeared  before  me,  John  J.  Norton,  a  notary 
public  in  and  for  said  county  and  state,  the  within  named  Jo- 
seph Dickson  and  Pauline  M.  Dickson,  the  bargainers,  with 
whom  I  am  personally  acquainted,  and  who  acknowledged 
that  they  executed  the  within  instrument  for  the  purposes 
therein  contained. 

And  the  said  Pauline  M.  Dickson,  wife  of  the  said  Joseph 
Dickson,  having  appeared  before  me  privately  and  apart  from 
her  husband,  the  said*  Pauline  M.  Dickson  acknowledged  the 
execution  of  the  said  instrument  to  have  been  done  by  her 
freely,  voluntarily,  and  understandingly,  without  compulsion 
or  constraint  from  her  said  husband,  and  for  the  purposes 
therein  expressed. 

Witness  my  hand  and  official  seal,  at  Nashville,  Tenn.,  this 
thirteenth  day  of  October,  1897. 

[SEAL.]  JOHN  J.   NORTON,  Notary  Public. 

STATE  OF  TENNESSEE,  ) 

Davidson   County,     f 

I,  John  J.  Norton,  a  notary  public  in  and  for  said  state  and 
county,  hereby  certify  that  Joseph  Dickson  and  his  wife, 
Pauline  M.  Dickson,  whose  names  are  signed  to  the  foregoing 
conveyance,  and  who  are  known  to  me,  acknowledged  before 
me,  on  this  day,  that  being  informed  of  the  contents  of  the 
conveyance,  they  executed  the  same  voluntarily  on  the  day  the 
same  bears  date. 

Given  under  my  hand  and  seal  of  office,  this  thirteenth  day 
of  October.  A.D.  1897. 

[SEAL.]  JOHN  J.  NORTON,  Notary  Public. 

STATE  OF  TENNESSEE,  ) 

Davidson  County.     \ 

I,  John  J.  Norton,  a  notary  public  in  and  for  said  state  and 
county,  do  hereby  certify  that  on  the  thirteenth  day  of  Octo- 
ber, 1897,  came  before  me  the  within  named  Pauline  M. 
Dickson,  known  to  me  to  be  the  wife  of  the  within  named  Jo- 
seph Dickson,  who,  being  examined  separate  and  apart  from 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         443 

the  husband  touching  her  signature  to  the  within  deed,  ac- 
knowledged that  she  signed  the  same  of  her  own  free  will  and 
accord,  and  without  fear,  constraint,  or  threats  on  the  part  of 
the  husband. 

In  witness  whereof,  I  hereto  set  my  hand  and  seal  of  office, 
this  thirteenth  of  October,  A.D.  1897. 

[SEAL.]  JOHN  J.  NORTON,  Notary  Public. 

The  foregoing  deed  is  registered  in  the  following  counties 
and  states  in  the  books  named: 

(1)  Bedford  county,  Tenn.,  March  14,    1898,  in  book  5,  p. 
394. 

(2)  Moore  county,  Tenn.,  March,   14,  1898,  in  book  6,   p. 
406. 

(3)  Lincoln    county,    Tenn.,    March,    14,     1898,    in    book 
"FF,"  p.  27. 

(4)  Madison  county,  Ala.,  March   15,   1898,  in  vol.   83  of 
Deeds,  p.  231. 

(5)  Limestone  county,  Ala.,  March  19,  1898,  in  vol.   58  of 
Deeds,  p.  379. 

DECREE  CONFIRMING  SALE  TO  JOS.  DICKSON. 

IN  THE  CIRCUIT  COUKT  OF  THE  UNITED  STATES  FOB  THE  MIDDLE 
DISTRICT  OF  TENNESSEE. 

THE  STATE  TRUST  COMPANY,  COMPLAINANT,  v.  THE  MIDDLE 
TENNESSEE  &  ALABAMA  RAILWAY  COMPANY  AND  JOSEPH 
DICKSON,  DEFENDANTS. 

This  cause  having  been  submitted  for  decree  upon  the  report 
of  the  special  master,  H.  M.  Doak,  heretofore  appointed  in 
this  cause  by  this  court,  and  in  the  cause  pending  in  the  circuit 
court  of  the  United  States  for  the  northern  division  , 

/nasicr  s  re- 

of  the  northern  district  of  Alabama,  which  said  *>« confirmed, 
proceeding  is  in  the  nature  of  an  ancillary  bill  to  the  bill  tiled 
in  this  court  as  an  original  bill;  and  now,  upon  motion  of  coun- 
sel on  behalf  of  the  complainant,  it  is  ordered,  adjudged,  and 
decreed  that  the  said  report  be,  and  the  same  is  hereby,  in  all 
things  confirmed. 

And  it  further  appearing  to  the  court  from  said  report,  that 


444       DEED    AND    ACTS    RELATING    TO    M.    T.    <fe    A.    BRANCH 

Joseph  Dickson,  the  purchaser  of  said  property,  having  com- 
plied with  the  terms  of  sale,  as  provided  in  the  decree  of 
this  court  and  of  the  circuit  court  of  the  United  States  for  the 
Master  ordered  northern  division  of  the  northern  district  of  Ala- 
deed,  barua,  it  is  ordered,  adjudged,  and  decreed  that  the 
said  H.  M.  Doak,  as  such  special  master,  make  and  execute  to 
the  said  Joseph  Dickson  a  valid  deed  of  conveyance,  vesting 
him  with  the  title  to  the  properties  of  said  railway  company 
described  in  the  said  indentures  of  mortgage  and  deeds  of  trust 
described  in  the  pleadings  in  this  cause,  and  more  particularly 
described  as  follows,  to  wit: 

All  the  line  of  railway  formerly  of  the  Decatur,  Chesapeake 
&  New  Orleans  Railway  Company,  situated,  lying,  and  being 
within  the  counties  of  Bedford,  Moore,  and  Lincoln,  in  the 
State  of  Tennessee,  and  the  counties  of  Madison,  Limestone, 
Description  of  an(^  ^organ?  m  the  State  of  Alabama,  constructed 
property  sold.  an(j  ^o  ^  constructed  between  the  points  herein- 
after named,  to  wit:  Beginning  at  Shelby ville,  in  the  county 
of  Bedford  and  State  of  Tennessee,  and  running  thence  through 
the  said  counties  of  Bedford,  Moore,  and  Lincoln,  to  Fayette- 
ville,  in  the  said  county  of  Lincoln  and  State  of  Tennessee,  and 
running  partly  through  the  county  of  Lincoln,  in 
the  State  of  Tennessee,  and  through  the  counties  of 
Madison,  Limestone,  and  Morgan  in  the  State  of  Alabama,  to 
Decatur,  in  the  State  of  Alabama,  a  total  distance  of  about 
seventy-eight  miles. 

Together  with  the  corporate  property  of  every  name,  kind, 
and  description,  at  any  time  owned  by  the  Decature,  Chesa- 
peake &  New  Orleans  Railway  Company,  or  acquired  by  it, 
Further  de-  or  ^y  ^De  ^ddle  Tennessee  &  Alabama  Railway 
Company,  or  which  may  hereafter  be  held  or  ac- 
quired by  the  Middle  Tennessee  &  Alabama  Railway  Company, 
or  used  by  it  in  constructing,  managing,  or  operating  its  said 
line  of  railway  and  pertaining  thereto,  and  all  estates  and  in- 
terests therein,  including  all  the  right  of  way  therefor,  and  the 
roadbed  of  said  railway,  the  entire  superstructure  thereof, 
and  track  at  any  time  placed  thereon,  and  all  station,  depot, 


NASHVILLE,    CHATTANOOGA    A   ST.    LOUIS    RAILWAY.         445 

shop,  yard,  and  other  grounds  at  any  time  used  in  connection 
therewith,  and  all  steel  and  iron  rails,  ties,  railways,  sidings, 
switches,  bridges,  fences,  turntables,  watertanks,  ware- 
houses, freight  houses,  car  and  engine  houses,  machine  shops, 
docks  and  all  other  structures,  buildings,  and  fixtures  whatso- 
ever, together  with  all  the  equipments  and  rolling  stock  and 
locomotives,  cars  of  every  description,  machinery,  tools,  im- 
plements and  materials,  formerly  of  the  said  Decatur,  Chesa- 
peake &  New  Orleans  Railway  Company,  and  now  of  the 
Middle  Tennessee  &  Alabama  Railway  Company,  owned  or 
acquired  for  constructing,  maintaining,  operating,  replacing, 
improving,  or  repairing  the  said  line  of  railway  and  its  appur- 
tenances, or  any  part  thereof,  or  in  and  for  the  business  of 
said  railway,  and  all  the  real  estate  of  the  Middle  Tennessee  & 
Alabama  Railway  Company  wherever  the  same  may  be  situ- 
ated, now  held  or  acquired  by  it,  or  at  any  time  hereafter  held 
or  acquired  for  the  purposes. 

Also  all  the  rights,  franchises,  privileges,  immunities  and 
easements,  and  all  leases,  leaseholds,  rights  of  use  of  other 
railways,  and  all  estates,  real,  personal,  or  mixed,  at  any  time 
held  or  acquired  by  the  said  Decatur,  Chesapeake  Franchlse 
&  New  Orleans  Railway  Company,  or  now  held  by  etc-P»ss- 
the  Middle  Tennessee  &  Alabama  Railway  Company,  or  here- 
after held,  possessed,  or  acquired  by  it,  in  connection  with 
its  said  line  of  railway,  and  all  rents,  issues,  profits,  income, 
and  proceeds  of  the  said  line  of  railway,  or  arising  from  any 
of  the  aforesaid  property,  together  with  all  and  singular  the 
tenements,  hereditaments,  and  appurtenances  thereunto  belong- 
ing or  in  anywise  appertaining  thereto;  and  all  the  reversions, 
remainder,  choses  in  action,  estate,  right,  title,  interest,  prop- 
erty, possession,  claim,  and  demand  whatsoever,  as  well  in  law 
as  in  equity,  formerly  of  the  said  Decatur,  Chesapeake  &  New 
Orleans  Railway  Company,  and  now  of  the  Middle  Tennessee 
&  Alabama  Railway  Company,  in  and  to  the  aforesaid  prop- 
erty and  premises,  or  any  part  thereof,  and  all  rights,  powers, 
privileges,  and  franchises,  now  or  at  any  time  hereafter  held 
or  acquired  by  the  said  Middle  Tennessee  &  Alabama  Railway 
Company,  connected  with  or  related  to  said  line  of  railway,  or 


446   DEED  AND  ACTS  RELATING  TO  M.  T.  &  A.  BRANCH 

other  property  hereby  conveyed,  or  intended  so  to  be  con- 
veyed by  the  deeds  of  trust  which  was  ordered  to  be  foreclosed 
under  said  decree,  for  the  uses  or  purposes  thereof,  or  for  the 
construction,  maintenance,  uses,  or  enjoyment  of  the  same,  and 
all  corporate  franchises  of  the  said  Middle  Tennessee  &  Ala- 
bama Railway  Company  of  every  nature,  including  the  fran- 
chise to  be  a  corporation. 

Also  the  lands,  tenements  and  hereditaments,  rights  of  way, 
and  easements,  now  held  or  hereafter  acquired  by  the  said 
Middle  Tennessee  &  Alabama  Railway  Company,  for  the  pur- 
poses of  said  line  of  railway  and  for  the  purpose  of  depots, 
stations,  or  terminals  in  connection  with  said  line  of  railway. 

The  said  special  master  in  the  execution  of  said  deed  will 
convey  said  property  to  the  said  Joseph  Dickson  as  such  pur- 
chaser, subject  to  all  taxes  which  may  be  a  lien  upon  the  prop- 
Sale  subject  to  erty  S°ld5  and  also  subject  to  any  valid  claims  of 
what  Hens.  anv  intervening  creditor  which  may  be  determined 
to  have  priority  over  the  first  and  second  mortgage  bonds, 
secured  by  the  deeds  of  trust,  described  in  said  decree  of  fore- 
closure, and  said  special  master  will  convey  said  property 
without  appraisement  or  right  of  redemption  on  the  part  of 
the  said  Middle  Tennessee  &  Alabama  Railway  Company,  the 
State  Trust  Company,  or  any  other  holders  of  the  bonds  issued 
under  said  indentures  of  mortgage  or  deeds  of  trust. 

It  is  further  ordered,  adjudged,  and  decreed  that  from  and 
out  of  the  said  fund  of  twenty  thousand  ($20,000)  dollars,  so 
Cost  to  come  deposited  with  the  registry  of  this  court  by  the 
out  of  funds.  said  Joseph  Dickson,  that  the  clerk  of  this  court 
pay  the  costs  and  expenses  incident  to  this  suit  and  the  com- 
pensation of  the  trustee  and  its  solicitors  and  the  receiver  and 
his  solicitors,  and  that  from  the  balance  that  may  be  due  after 
the  payment  of  such  costs,  expenses,  and  fees,  that  the  said 
clerk  pay  to  the  remaining  holders  of  said  bonds  the  pro  rata 
share  due  to  them,  according  as  the  amount  thereof  bears  to 
the  entire  issue  of  said  bonds  on  the  basis  of  said  purchase 
price  of  one  hundred  and  fifty  ($150,000)  thousand  dollars, 
less  said  costs,  expenses,  and  fees,  and  the  balance  thereof  shall 
be  paid  to  the  said  Joseph  Dickson,  the  purchaser  aforesaidj 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS   RAILWAY.         447 

after  an  indorsement  on  said  bonds  as  a  partial  payment  of  the 
amount  which  should  be  properly  charged  against  each  of  said 
bonds  so  issued  under  said  indenture  of  mortgage  or  deed  of 
trust,  when  said  bonds  so  owned  by  said  Joseph  Dickson  shall 
be  surrendered  and  delivered  to  said  Joseph  Dickson  by  the 
clerk  of  this  court. 

It  is  further  ordered,  adjudged,  and  decreed  that  the  clerk 
of  this  court  indorse  on  each  of  said  bonds,  as  a  partial  pay- 
ment thereon,    the   sum   to   which    the   holder    or  Bonds  to  be 
holders  thereof  will  be  justly  and  properly  entitled  not  canceled, 
to  receive  as  a  proportionate  disbursement  by  said  clerk  from 
said  sum  so  bid  for  said  railway  property,  and    the  sum  so 
indorsed  thereon  shall  serve  as  a  partial  and  pro  tanto  payment 
on  said  bonds. 

It  is  further  ordered,  adjudged,  and  decreed  that  Gaunt  Crebs, 
the  receiver  heretofore  appointed  under  the  decree  of  this  court 
in  this  cause,  and  under  the  decree  of  the  circuit  court  of  the 
United  States  for  the  northern  division  of  the  northern  district 
of  Alabama,  surrender  and  deliver  to  said  Joseph  Dickson,  the 
purchaser  aforesaid,  the  said  railroad  property  so  purchased 
by  the  said  Joseph  Dickson  heretofore  under  the  said  decrees 
committed  to  the  trust,  care,  and  custody  of  the  said  Gaunt 
Crebs  as  such  receiver. 

It  is  further  ordered,  adjudged,  and  decreed  that  the  clerk 
of  this  court  issue  to  the  marshal  of  this  court  writs  of  assist- 
ance, and  such  other  remedial  writs  as  may  be  necessary  in  the 
premises,  to  place  the  said  Joseph  Dickson  in  the  full  posses- 
sion and  enjoyment  of  the  said  properties,  accord-  Possesslon  to 
ing  to  his  purchase  and  to  which  he  may  be  entitled  be  *lveB- 
under  the  decrees  of  this  court  and  the  conveyances  so  ordered 
to  lie  executed  by  the  special  master  to  him. 

All  further  questions  in  this  cause  are  reserved. 

May  10,  1897. 

Enter  this.  CLARK,  J. 

The  special  master  executed  a  deed  to  Joseph  Dickson  in  conformity 
to  the  terms  of  this  decree.  Said  deed  was  registered  in  Bedford  county, 
Tenn.,  in  book  5,  p.  54;  in  Moore  county.  Term.,  in  book  6,  p.  236-344;  in 
Lincoln  county,  Tenn.,  in  book  "E  E,"  p.  85-91,  and  in  judge  of  pro- 
bate court  of  Madison  county,  Ala.,  in  vol.  80  of  deeds,  p.  429. 


448  CHATTANOOGA  TERMINAL  BRANCH 


CHAFFER  XXXVI. 
CHATTANOOGA  TERMINAL,  RAILWAY. 

[Chartered  under  general  Acts   of    Tenn. ,  1875,  ch.  142.] 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— On  July  29,  1895,  the  Chattanooga  Terminal  Rail- 
way Company,  a  corporation  chartered  under  the  general  laws 
of  the  State  of  Tennessee,  leased  to  the  Nashville,  Chattanooga 
&  St.  Louis  Railway,  for  a  period  of  ten  years  from  August 
15,  1895,  its  railroad  track  and  right  of  way  extending  from 
a  connection  in  the  city  of  Chattanooga  with  the  tracks  of  the 
said  Nashville,  Chattanooga  &  St.  Louis  Railway,  and  running 
northwestwardly  toward  and  near  the  old  Roane  Iron  Works, 
on  the  banks  of  the  Tennessee  river,  in  said  city,  and  as  de- 
scribed in  a  deed  from  the  Southern  Iron  Company  to  C.  E. 
James,  trustee,  which  deed  was  registered  in  the  register's 
office  of  Hamilton  county,  in  book  "  G, "  vol.  4,  p.  463.  The 
consideration  agreed  to  be  paid  was  $188  per  month,  so  long 
as  its  exclusive  use  was  enjoyed,  or  otherwise  a  pro  rata 
of  that  amount,  as  fully  set  out  in  the  lease,  which  may  be 
found  in  the  next  chapter.  The  lease  was  registered  in  the 
register's  office  of  Hamilton  county,  in  book  "Y,"  vol.  5, 
p.  450. 

(1)  Legality  of  lease.— This  lease  was  valid  under  Acts  Tenn.,  1857- 
58,  ch.  8,  p.  5,  granting  authority  to  the  Nashville,   Chattanooga  &  St. 
Louis  Railway  to  lease  any  railroad  connecting  with  it  for  such  time  and 
upon  such  terms  and  conditions  as  might  be  agreed  upon.     In  addition, 
the  power  was  conferred  by  Acts  Tern..  1869-70,  ch.  49,  p.  323,  $4;  Acts 
1871,  ch.  69;  Acts  1881,  ch.  9,  p.  10,   g2;  Acts  1891,  ch.  61,  p.  146,  and  ch. 
125,  p.  274. 

(2)  Buffalo  Iron  Company  extension. — Subsequent  to  the  lease  above 
mentioned,  the  Nashville,  Chattanooga  &  St.  Louis  Railway  leased  from 
the  Buffalo  Iron  Company  about  three  thousand  feet  of  track,  extending 
from  the  end  of  the  said  Chattanooga  Terminal  Company's  tracks  to  the 
Tennessee  river,  at  a  rental  of  §25  per  month,  and  is  now  operating1  it  in 
connection  therewith.     The  lease  is  not  in  writing,  however. 


NASHVILLE,    CHATTANOOGA   &    ST.    LOUIS    RAILWAY.         449 

Distance  road  built  when  leased.— When  the  Nashville, 

Chattanooga  &  St.  Louis  Railway  leased  this  road  it  had  only 
been  built  about  4,675  feet.  It  commenced  on  the  Nashville, 
Chattanooga  &  St.  Louis  Kail  way.  at  a  point  about  600  feet 
south  (by  the  compass)  of  Catherine  street,  in  Chattanooga, 
Tenn. ;  running  thence  to  Catherine  street;  thence  in  Catherine 
street  to  Grove  street;  thence  through  private  property  to  the 
north  line  of  the  Chattanooga  Iron  Company's  property.  Since 
leasing  it,  the  Nashville,  Chattanooga  &  St.  Louis  Railway  has 
added  nothing  to  the  main  line,  but  has  added  the  following 
sidings,  which  are  in  private  property:  Ross  &  Mehan  Foun- 
dry, 400  feet;  Montague  Pipe  Works,  560  feet;  Fayer weather 
&  Ladew  Tannery,  390  feet;  Walsh  &  Weidner,  540  feet; 
total,  1,890. 

Width  Of  right  Of  way. — As  the  Chattanooga  Terminal  Rail- 
way Company  was  chartered  under  the  general  acts  of  Tennes- 
see, the  width  of  its  right  of  way  would  be  determined  in  the 
same  manner  as  the  width  of  the  right  of  way  of  the  Decatur, 
Chesapeake  &  New  Orleans  Railway  Company  (in  Tennessee), 
a  discussion  of  which  may  be  found  herein  on  page  411,  to 
which  reference  is  here  made. 

ORIGINAL,    CHARTER  OF    THE    CHATTANOOGA 
TERMINAL  RAILWAT  COMPANY. 

[Acts  Tenn.,  1875,  ch.  142,  §6.] 

SECTION  i.  Incorporation,  name,  route,  general  powers.— 

Be  it  known,  That  Napoleon  Lodor,  H.  H.  Webster,  James  R. 
Whitman,  George  M.  Clark,  and  Franklin  Harris  are  hereby 
constituted  a  body  politic  and  corporate  by  the  name  and  style 
of  ''Chattanooga  Terminal  Railway  Company,"  for  the  purpose 
of  constructing  a  railway  from  a  point  on  Market  street,  in  the 
city  of  Chattanooga,  Tenn.,  at  or  near  the  depot  in  said  city 
known  as  the  Central  Depot;  thence  westward,  northwest- 
wardly in  a  general  direction  to  and  across  the  Tennessee  river; 
thence  in  a  northwestwardly  direction  through  the  counties  of 
Hamilton,  Marion,  Sequatchie,  Bledsoe,  and  Van  Buren,  in  the 
State  of  Tennessee.  Also  of  constructing  said  railway  from 

29 


450  CHATTANOOGA  TERMINAL  BRANCH 

the  beginning  point  near  the  Central  Depot  in  the  city  of  Chat- 
tanooga, Hamilton  county,  Tenn.,  southwardly  to  the  Georgia 
State  line,  to  or  near  the  present  terminus  of  the  Chattanooga 
Southern  Railway  Company. 

(Chapter  CXIX.  of  Acts  of  Tennessee  of  1881,  "An  Act  to  authorize  a 
corporation  to  regulate  the  number  of  directors  thereof,"  provides, 
"That  all  private  corporations  are  hereby  authorized  to  increase  or  di- 
minish the  number  of  their  directors;  Provided,  Such  number  never  be 
less  than  five;  Provided,  further,  That  stockholders  representing  three- 
fourths  of  the  stock  of  any  corporation  shall  vote  for  such  increase  or 
diminution.") 

[Sections  2  to  41  inclusive  of  this  charter  are  the  same  as  those  of  the 
Decatur,  Chesapeake  &  New  Orleans  Railway  Company  in  Tennessee. 
.See  page  414  herein.  They  are  here  omitted  for  economy.] 

We,  the  undersigned,  apply  to  the  State  of  Tennessee,  by 
virtue  of  the  law  of  the  land,  for  a  charter  of  incorporation  for 
the  purposes  and  with  the  powers,  etc. ,  declared  in  the  forego- 
ing instrument. 

Witness  our  hands,  this  fourteenth  day  of  November,  1892. 

NAPOLEON  LODOR, 
H.  H.  WEBSTER, 
JAMES  R.  WHITMAN, 
GEORGE  M.  CLARK, 
FRANKLIN  HARRIS. 

Charter,  where  registered. — The  above  charter  was  properly  acknowl, 
edged  and  registered  in  the  register's  office  of  Hamilton  county,  Tenn.- 
in  book  '•  B,"  vol.  5,  p.  671;  in  the  secretary  of  state's  office,  in  book  "  S," 
p.  613. 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS   RAILWAY.         451 


CHAPTER  XXXVII. 

LEASE  CONTRACT  OF  CHATTANOOGA  TERMINAL  RAILWAY. 

CHATTANOOGA  TERMINAL  RY.  Co. 
TO 

N.,  C.  &  ST.  L.  RY. 

This  agreement  made  and  entered  into  this  the  twenty-ninth 
day  of  July,  A.D.  1895V,  by  and  between  the  Chattanooga 
Terminal  Railway  Company,  of  the  first  part,  and  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  of  the  second  part, 
Witrtesseth :  That  the  said  first  party,  in  consideration  of  the 
sums,  terms,  provisions,  and  conditions  hereinafter  stated,  has 
agreed  to  lease,  and  by  these  presents  does  lease,  to  the  second 
party  for  a  period  of  ten  (10)  years,  from  August  15,  1895, 
the  railroad  track  and  right  of  way  known  as  the  Roane  Iron 
Company's  railroad  track  and  right  of  way,  extending  from  a 
connection  in  the  city  of  Chattanooga  with  the  rail- 
road  track  of  the  said  second  party,  and  running 
northwesterly  toward  and  near  the  old  Roane  Iron  Works,  on 
the  banks  of  the  Tennessee  river  in  said  city,  and  as  described  in 
deed  from  Southern  Iron  Company  to  C.  E.  James,  trustee, 
and  in  the  plat  thereto  attached,  to  be  found  of 
record  in  the  office  of  the  register  of  Hamilton 
county,  in  the  State  of  Tennessee,  in  book  "G,"  vol.  4,  p. 
463,  reference  to  which  is  here  made  for  a  more  perfect  de- 
scription of  said  railroad  track  and  right  of  way,  and  the  same 
made  a  part  thereof  as  fully  to  all  intents  and  purposes  as  if 
set  out  word  for  word  herein,  and  as  if  said  plat  was  hereunto 
attached,  it  being  intended  to  include  in  this  lease  the  whole  of 


CHATTANOOGA  TERMINAL  BRANCH 

the  property  conveyed  by  said  deed.  The  said  second  party, 
in  consideration  of  the  premises,  is  to  take  charge  of  said 
leased  property  on  the  fifteenth  day  of  August,  A.D.  1895,  in 
the  condition  it  is  then  in,  and  at  the  expiration  of  said  ten  (10) 
years  is  to  turn  the  same  over  to  the  said  first  party,  or  its 
assigns  or  successors,  in  as  good  condition  and  repair  as  at  the 
beginning  of  this  lease. 

The  said  second  party  is  authorized,  at  its  own  expense,  to 
repair,  keep  in  repair,  or  rebuild  the  main  track  on  the  right 
of  way  leased,  and  to  construct  such  other  tracks  on  said  right 
of  way  as  may  be  found  necessary  or  desirable,  and  in  so  doing 
to  use  such  parts  of  the  present  material  as  may  be  necessary; 
improvements  all  repairs,  additional  track,  etc.,  at  the  termina- 
lessor.  tion  of  this  contract  to  become  and  be  the  property 

of  the  said  first  party. 

It  is  further  mutually  understood  and  agreed,  however,  that 
the  said  first  party  reserves,  and  is  at  all  times  to  have  the 
right  to  use,  said  track  or  tracks  without  let  or  hindrance  at 
the  request  of  the  said  first  party  made  upon  the  said  second 
party  in  connection  with  any  extension  it  may  make  of  its  road 
beyond  the  Tennessee  river.  But  in  that  event  the  monthly 
rental  hereinafter  mentioned,  and  the  said  expense  of  maintain- 
ing and  keeping  in  good  repair  said  track  and  right  of  way 
as  aforesaid,  shall  thenceforward  be  and  the  same  in  consid- 
eration thereof  borne  and  paid  pro  rata  with  the  said  second 
party  by  the  said  first  party,  or  its  assigns,  on  a  wheelage 
basis. 

It  is  further  mutually  understood  and  agreed  by  and  between 

the  parties  hereto  that  the  second  party,  in  consideration  of 

these  premises,  is  to  pay  to  the  said  first  party  one 

hundred  and  eighty-eight  ($188. 00)  dollars  in  cash 

per  month  during  the  period  of  ten  (10)  years  aforesaid,  or  so 

long  as  it  has  the  exclusive  use  of  said  leased  property,  and 

thereafter  during  the  remainder  of  said  period   its  pro  rata 

thereof,  as  aforesaid.     The  first  of  said  payments  is  to  be  made 

on  the  fifteenth  day  of  September,    1895,   and  those  coming 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS   EAILWAY.         453 

afterwards  on  tlie  fifteenth  day  of  each  successive  mouth  during 
a  period  of  ten  (10)  years  aforesaid,  and  in  addition  thereto  is 
to  pay  any  and  all  state,  county,  and  municipal  taxes  at  their 
maturity  which  may  be  assessed  against  said  property  during 
the  life  of  this  contract,  saving  and  excepting  those  for  the 
year  1895,  which  are  to  be  paid  by  the  said  first  party,  and 
also  saving  and  excepting  that,  if  the  said  first  party  shall  use 
said  track  in  connection  with  its  extension  across  the  Tennessee 
river  as  aforesaid,  then  the  said  second  party  is  to  pay  its  pro 
rata  thereof  on  the  basis  aforesaid. 

It  is  further  mutually  understood  and  agreed  that  the  said 
second  party,  in  consideration  of  these  premises,  agrees,  binds, 
and  obligates  itself  to  protect,  hold  harmless,  and  indemnify 
the  said  first  party  and  its  assigns  against  any  and  all  claims, 
suits,  and  demands  for  damages  for  which  a  recovery  may  be 
had  against  them,  or  either  of  them,  growing  out  of  the  exist- 
ence of  or  the  operation  or  use  of  said  railroad  track  by  the 
said  second  party.  It  in  further  mutually  understood  and 
agreed  that  the  said  second  party  is  not  to  sub-let  in  Sub.iettln8 
whole  or  in  part  said  railroad  right  of  way  or  track  Prohlwte(!- 
without  the  written  consent  of  the  said  first  party,  or  its  as- 
signs, to  be  first  had  and  obtained;  and  that  in  case  of  a  breach 
of  any  or  either  of  the  terms,  provisions,  or  conditions  of  this 
contract,  and  such  breach  should  continue  for  a  period  of  more 
than  thirty  (30)  days,  then  and  in  that  event  this  contract  shall, 
at  the  option  of  the  said  first  party,  or  its  assigns,  the  exercise 
of  which  shall  be  indicated  by  a  written  notice  to  that  effect  ten 
(10)  days  previous  thereto,  be  terminated,  and  the  said  first 
party,  or  its  assigns,  shall  have  the  right  not  only  to  enter  and 
take  possession  of  said  property,  and  each  and  every  parcel 
thereof,  without  let  or  hindrance,  but  to  recover  such  damages 
as  it  may  sustain  by  reason  of  any  breach  hereof. 

It  is  further  agreed  that  this  lease  may  be  terminated  at  any 
time  by  the  mutual  consent  of  both  parties. 

In  witness  whereof  the  said  parties  have  caused  their  corpo- 
rate names  and  seals  to  be  hereto  attached  by  their  properly 
authorized  officers  in  duplicate. 


454:  CHATTANOOGA  TERMINAL  BRANCH 

This  the  twenty-ninth  day  of  July,  A.D.   1895.     Executed 
in  duplicate. 

CHATTANOOGA  TERMINAL  RAILWAY  COMPANY, 
By  T.  J.  NICHOLL,  President; 
By  JOHN  ORR,  Secretary  and  Treasurer. 
NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 
By  J.  W.  THOMAS,  President; 
By  J.  H.  AMBROSE,  Secretary. 

Lease,  where  registered. — The  above  lease  was  properly  acknowl- 
edged and  registered  August  2,  1895,  in  Hamilton  county,  in  book  "  Y," 
vol.  5,  p.  450  et  seq. 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         455 


CHAPTER   XXXVIII. 

THE    TENNESSEE   MIDLAND    RAILWAY. 

[MEMPHIS  BRANCH.] 
[Chartered  under  g-eneral  Acts  Tennessee,  1875,  Ch.  142.] 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— The  Tennessee  Midland  Railway  Company,  in  order  to 
raise  funds  to  construct  its  road,  issued  and  disposed  of  itsjimt 
mortgage  bonds  to  the  amount  of  $1,491,000,  and  of  its  second 
mortgage  bonds  to  the  amount  of  §1,220,000,  which  bonds 
were  guaranteed  by  the  Paducah,  Tennessee  &  Alabama  Rail- 
road. Default  being  made  in  the  payment  of  the  coupons, 
the  St.  Louis  Trust  Company,  as  trustee,  on  October  28,  1893, 
filed  a  bill  in  the  circuit  court  of  the  United  States  for  the 
western  division  of  the  western  judicial  district  of  Tennessee  at 
Memphis,  and  afterwards,  on  July  1,  1895,  a  supplemental 
bill,  seeking  to  foreclose  said  mortgages.  Such  proceedings 
were  had  that,  on  Jul}'  9,  1895,  a  decree  of  foreclosure  of  said 
first  and  second  mortgages  was  rendered,  and  the  property  or- 
dered to  l>e  sold  by  J.  H.  Watson  and  J.  B.  Clough,  as  special 
masters.  On  October  17,  1895,  at  12  o'clock,  at  the  court- 
house door  in  Memphis,  Tenn.,  the  railroad  properties,  fran- 
chises, etc.,  were  sold  in  conformity  with  the  terms  of  the 
decree,  and  J.  W.  Phillips  became  the  purchaser  at  the  sum  of 
$1,000,000,  which  was  the  highest,  last,  and  best  bid.  Sub- 
sequently the  special  masters  executed  to  him  a  deed  to  said 
property,  which  deed  was  registered  in  Shelby  county,  Tenn., 
August  10,  1896,  in  record  book  250,  p.  206;  in  Henderson 
county,  Tenn.,  December  23,  1895,  in  record  book  14,  pp.  225- 
230;  in  Hardeman  county,  Tenn.,  December  23,  1895,  in 
book  "J  J"  of  deeds,  p.  473;  in  Decatur  county,  Tenn., 
December  24,  1895,  in  book  13,  pp.  107-111;  in  Madison 
county,  Tenn.,  December  23,  1895,  in  deed  book  54,  p.  16;  in 


456  ABSTRACT    OF    TITLE    OF    MEMPHIS    BRANCH 

Fayette  county,  Term.,  December  31,  1895,  in  record  book  20, 
pp.  485-490. 

The  receivers  of  the  company,  William  L.  Huse  and  John 
Overtoil,  Jr.,  also  executed  a  deed  conveying  to  J.  W.  Phil- 
lips all  their  right,  title,  and  interest  in  and  to  said  road,  prop- 
erty, franchises,  etc.  This  deed  was  registered  in  Shelby 
county,  Tenn.,  August  11,  1896,  in  book  250,  p.  215;  in  De- 
catur  county,  December  24,  1895,  book  13,  p.  117;  in  Harde- 
man  county,  December  31,  1895,  book  "J  J"  of  deeds,  p. 
481;  in  Fayette  county,  December  31,  1895,  book  20,  p.  495; 
in  Madison  county,  December  26,  1895,  book  54,  p,  26;  in 
Henderson  county,  December  23,  1895,  book  14,,  pp.  337-341. 

The  company  itself  also  executed  a  deed  conveying  to  J.  W. 
Phillips  all  its  right,  title,  and  interest  in  and  to  said  railroad, 
property,  franchises,  etc.  This  deed  was  registered  in  Shelby 
county,  August  10,  1896,  in  book  250,  p.  211;  in  Henderson 
county,  December  23,  1895,  in  book  14,  p.  333;  in  Hardeman 
county,  December  28,  1895,  in  book  "  J  J"  of  deeds,  p.  477; 
in  Madison  county,  December  24,  1895,  in  book  54,  p.  22;  ija 
Decatur  county,  December  24,  1895,  in  book  13,  pp.  113-117; 
in  Fayette  county,  December  31,  1895,  in  book  20,  pp. 
491-494. 

On  December  14,  1895,  J.  W.  Phillips  sold  said  road,  prop- 
erties, franchises,  etc.,  to  the  Louisville  &  Nashville  RaHroad 
Company,  and  executed  a  deed  therefor.  Said  deed,  together 
with  the  books  and  pages  where  it  is  registered  in  the  various 
counties,  may  be  found  herein.  See  next  chapter. 

On  December  14,  1895,  the  Louisville  &  Nashville  Railroad 
Company  executed  a  temporary  lease  of  this  road,  together 
with  the  Paducah,  Tennessee  &  Alabama  Railroad,  to  the 
Nashville,  Chattanooga  &  St.  Louis  Railway.  This  lease  is 
fully  set  out  in  the  next  chapter,  showing  the  places  of  regis- 
tration. 

For  deed  of  Louisville  &  Nashville  Railroad  Company  to  the  Paducah, 
Tennessee  &  Alabama  Railroad,  see  chapter  41  herein. 

On  September  9,  1896,  a  permanent  lease  of  the  two  roads 
was  drawn  up  and  signed  by  the  Louisville  &  Nashville  Rail- 


N  VSHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         457 

• 

road  Company  and  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  resj>ectively,  for  a  period  of  ninety-nine  years  from 
date,  at  a  rental  of  $154,650  per  annum,  payable  semiannu- 
ally.  This  was  five  per  cent,  on  the  amount  paid  by  the  Louis- 
ville &  Nashville  Railroad  Company  ($3,093, 000)  for  the  two 
roads.  The  lease  further  provided  that,  should  the  Louisville 
&  Nashville  Railroad  Company  be  called  upon  to  expend  addi- 
tional sums  for  improvements,  etc.,  on  the  two  roads,  an 
additional  rental  should  be  paid  of  tive  per  cent,  on  the  amount 
or  amounts  so  expended.  This  lease  is  also  fully  set  out  in  the 
next  chapter. 

Legality  of  lease;  Rogers'  suit. — There  can  be  no  question  but 
that  under  the  laws  of  the  State  of  Tennessee  both  the  Louisville  &  Nash- 
ville Railroad  Company  and  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way had  the  power  to  execute  this  lease  under  the  Acts  of  Tennessee, 
1877,  ch.  12,  §2;  Acts,  1869-70,  ch.  49,  p.  337,  $4;  Acts,  1871,  ch.  69;  Acts, 
1881,  ch.  9,  p.  10,  §2;  Acts,  1891,  ch.  61,  p.  146,  and  ch.  125  of  same  Act, 
p.  274;  Acts,  1877,  ch.  20;  Code  Tenn.  (Shannon;,  §  1514. 

The  Louisville  «fe  Nashville  Railroad  Company  had  the  power  origi- 
nally to  purchase  the  road  from  Phillips,  under  Acts  Tennessee.  1877,  ch. 
20.  The  only  remaining  question  is  whether  or  not,  in  attempting  to 
exercise  the  power  to  lease,  the  respective  companies  followed  the  stat- 
ute. This  question  was  raised  by  J.  S.  Rogers,  one  of  the  stockholders 
of  the  Nashville,  Chattanooga  «fc  St.  Louis  Railway,  who  filed  a  bill  Jan- 
uary 30,  1897,  in  the  circuit  court  of  the  United  States  for  the  middle 
district  of  Tenas-jsee  (in  equity),  at;  Nashville,  seekinsr  to 

DrktrAfc'    £flC£ 

have  the  lease  canceled:  First,  because  the  contract  was 
fraudulently  imposed  upon  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way by  the  Louisville  &  Nashville  Railroad  Company,  through  iU  con- 
trolling influence  as  a  majority  stockholder;  second,  because  the  contract 
was  itltrii  vires;  and,  third,  because,  if  neither  void  as  ultra  vires  nor 
voidable  for  fraud,  it  was  such  a  contract  as  eould  not  be  legally  con* 
summated  without  ratification  by  a  three-fourths  vote  of  the  bharehold- 
ers.  A  demurrer  was  filed  to  this  bill  by  the  railroad  companies,  and 
sustained  by  the  circuit  judge.  An  appeal  was  taken  to  the  United 
States  circuit  court  of  appeals,  and  a  decision  rendered  by  that  court 
November  9, 1898.  Judge  Lurton,  in  rendering  the  opinion  of  the  court, 
held  in  substance: 

(1)  That  the  Louisville  &  Nashville  Railroad  Company  had  a  sound 
legal  title  to  the  road,  franchises,  etc..  of  the  Tennessee  Midland  Rail- 
way and  to  the  Paducah,  Tennessee  &  Alabama  Railroad,  which  would 
support  the  lease  unless  subject  to  other  objections. 

(2)  That  the  Nashville,  Chattanooga  &  St.  L  >uis  Railway  had   the 
power,  under  the  laws  of  Tennessee,  to  accept  such  a  lease. 


458  ABSTRACT    OF    TITLE    OF    MEMPHIS    BRANCH 

(3)  That  the  leased  lines  were  in  no  manner  parallel  or  competing 
lines  with  the  Nashville,  Chattanooga&  St.  Louis  Railway. 

(4)  That  the  Louisville  &  Nashville  Railroad  Company  had  the  power 
to  dispose  of  the  roads  by  lease  or  otherwise  in  the  same  manner  and  to 
the  same  extent  that  the  old  corporations  might  have  done — that  is,  that 
the  Paducah,  Tennessee  &  Alabama  Railroad  Company  and  the  Tennes- 
see Midland  Railway  Company  could  have  done. 

(5)  That  the  Louisville  &  Nashville  Railroad  Company  had  the  power 
to  acquire,  hold,  and  vote  the  shares  of  the  capital  stock  of  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway. 

(6)  That  it  could  vote  it  for  directors,  and  even  on  all  questions  in 
which  it  was  interested. 

(7)  That  the  amendment  of  the  charter  of  the  Nashville,  Chattanooga 
&  St.  Louis  Railway  passed  in  1875,  giving  each  of  the  stockholders  the 
right  to  one  vote  for  each  share  of  stock  held,  was  legal. 

(8)  That  the  fact  that  the  directors  were  elected  by  the  holder  of  the 
majority  of  the  stock  did  not  make  them  agents  of  that  interest,  nor 
raise  any  legal  presumption  that  they  are  or  would  be  unfaithful  to  the 
true  and  general  interests  of  the  corporation. 

(9)  That  a  stockholder  is  not  a  trustee,  and  holds  and  acts  for  himself 
alone,  and,  hence,  can  contract  with  the  company,  but  cannot  use  this 
power  of  control  to  obtain  advantage  for  himself  at  the  expense  of  the 
minority  stockholders. 

(10)  That  Rogers  had  the  right  to  prosecute  the  suit  in  his  own  name 
without  calling  upon  the  board  of  directors  to  prosecute  it. 

(11)  That  the  lease  could  not  be  made  without  the  consent  of  a  ma- 
jority of  three-fourths  in  amount  of  the  stockholders  of  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  present  and  voting. 

The  case  was  reversed  and  remanded  for  a  new  trial,  and  is  still 
pending.  The  opinion  of  Judge  Lurton  has  not,  at  this  writing,  been 
published  in  any  of  the  reports. 

Distance  road  built  When  leased.— The  Tennessee  Midland 
Railway  Company  was  chartered  to  extend  from  Memphis  to  a 
point  on  the  Virginia  state  line,  at  or  near  its  crossing  of  Clinch 
river  in  Hancock  count}7.  At  the  time  of  the  lease,  however, 
the  road  had  only  been  constructed  from  Memphis  to  Perry  - 
ville,  on  the  Tennessee  river.  It  has  not  since  been  extended. 

(1)  The  Paducah,  Tennessee  &  Alabama  Railroad  connects  with  the 
Tennessee  Midland  Railroad  at  Lexington,  Tenn..  and  runs  northwardly 
to  Paducah,  Ky.     For  charter,  etc.,  of  the  former  road,  see  chapter  40 
herein. 

(2)  A  charter  was  also  taken  out  on  December  18,  1886,  for  a  company 
called  the  "Tennessee  Midland  Railway  Company,"  to  run  from  Nash- 
ville to  Knoxville,  via  Lebanon.     It  may  be  found  recorded  in  the  sec- 
retary of  state's  office,  in  book  "  F,"  p.  157. 


NASHVILLE,    CHATTANOOGA   &    ST.    LOUIS    RAILWAY.         459 

Width  Of  right  Of  way.— The  Tennessee  Midland  Railway 
Company  was  chartered  under  the  general  Acts  of  Tennessee, 
1875,  ch.  142,  sec.  6.  In  these  charters  there  are  no  clauses 
granting  specified  numbers  of  feet  as  a  right  of  way,  in  the 
absence  of  any  contract  with  the  original  landowner,  as  was 
done  in  the  charter  of  the  Nashville,  Chattanooga  &  St.  Louis 
Railway.  Section  9  of  the  charter,  however,  provided  that 
the  said  company  shall  have  the  right  to  appropriate,  as  an 
easement,  a  right  of  way  not  exceeding  two  hundred  feet — one 
hundred  on  each  side  of  the  center  line  of  said  road — over  the 
land  of  any  person  through  which  the  line  of  track  may  be 
located.  Under  this  section,  the  Tennessee  Midland  Railway 
Company  could  have  originally  condemned  any  number  of  feet 
up  to  and  including  two  hundred  feet  for  a  right  of  way. 
Whatever  number  of  feet  was  originally  condemned,  however, 
would  now  be  binding  upon  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  and  the  Louisville  &  Nashville  Railroad  Com- 
pany, unless  an  additional  or  successive  appropriation  be  made.* 
Should  no  purchase  or  condemnation  have  been  had  at  all,  then 
the  entry  and  construction  of  the  road  would  be  regarded  as 
an  appropriation  of  so  much  of  the  land  as  the  law  authorized, 
which  is  two  hundred  feet  in  Tennessee,  and  the  Louisville  & 
Nashville  Railroad  Company  and  its  lessee,  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway,  as  the  lawful  purchaser  and  lessee, 
respectively,  of  said  railroad,  would  be  entitled  to  that  numl>er. 
3  Lea  (Tenn.),  478.  If  a  purchase  or  gift  from  the  landowner 
was  made,  then,  of  course,  the  deed  would  control,  if  mention 
is  made  of  the  width  therein.  If  no  width  is  specified,  then 
the  law  presumes  the  statutory  width  of  two  hundred  feet  was 
intended.  98  Ala.,  647.  See,  also,  3  Lea  (Tenn.),  478. 

*(1)  For  full  discussion  of  right  to  make  successive  appropriations, 
etc.,  see  "Eminent  Domain,"  "  Right  of  Way."  herein.  Refer  to  Index. 

ORIGINAL  CHARTER  OF  THE  TENNESSEE  MID- 
LAND RAILWAY  COMPANY. 

[Chartered  under  general  Acts  Tennessee,  1875.  ch.  142,  §6.] 

SECTION  i.  Incorporation,  name,  route,  general  powers.— 

Be  it  known.  That  A.  S.  Buford,  J.  B.  Pace,  E.  D.  Christian, 


460  ORIGINAL    CHARTER    OF    MEMPHIS    BRANCH 

Charles  Watkins,  Thomas  C.  Williams,  T.  C.  Leake,  Jr.,  R. 
H.  Temple,  James  T.  Gray,  J.  J.  Montague,  A.  L.  Crawford, 
W.  D.  Bethel,  Napoleon  Hill,  John  Overton,  Jr.,  J.  M.  Ham- 
ilton, and  Nathaniel  Baxter,  Jr.,  are  hereby  constituted  a  body 
politic  and  corporate  by  the  name  and  style  of  "Tennessee 
Midland  Railway  Company,''  for  the  purpose  of  conducting 
and  operating  a  railway  from  Memphis,  in  the  county  of 
Shelby,  to  a  point  on  the  Virginia  state  line  at  or  near  its  cross- 
ing of  Clinch  river,  in  the  county  of  Hancock,  with  two  branch 
roads  from  convenient  points  on  the  main  line,  the  one  to  Co- 
lumbia, in  the  county  of  Maury,  and  the  other  to  Knoxville, 
in  the  county  of  Knox. 

(1)  Charter  amended,   may  change  termini. — By  Acts  Tennessee, 
1887,  ch.  39,  <5g  1,  2,  all  railroad  companies  chartered  under  the  general 
laws  of  this  state  may,  by  resolution  of  board  of  directors,  change  either 
terminus  before  the  final  location  of  the  road.     See  act  itself  for  method. 

(2)  Arbitration. — By-laws  for  arbitration  sustained.    7  Pickle  (Tenn.), 
64. 

(3)  Branches. — By  Acts  Tennessee,  1889,  ch.  158,  all  railroad  compa- 
nies chartered  under  the  general  laws  are  allowed  to  build  branch  roads 
in  certain  cases.  See  act  itself. 

SEC.  2.  General  powers. — The  general  powers  of  said  cor- 
poration are,  to  sue  and  be  sued  by  the  corporate  name,  to 
have  and  use  a  common  seal,  which  it  may  alter  at  pleasure;  if 
no  common  seal,  then  the  signature  of  the  name  of  the  corpo- 
ration by  any  duly  authorized  officer  shall  be  legal  and  binding: 
to  purchase  and  hold  or  receive  by  gift,  in  addition  to  the  per- 
sonal property  owned  by  said  corporation,  any  real  estate 
necessary  for  the  transaction  of  the  corporate  business,  and 
also  to  purchase  or  accept  any  real  estate  in  payment,  or  part 
payment,  of  any  debt  due  to  the  corporation,  and  sell  realty  for 
corporation  purposes;  to  establish  by-laws  and  make  all  rules 
and  regulations  not  inconsistent  with  the  laws  and  the  constitu- 
tion deemed  expedient  for  the  management  of  corporate  affairs; 
to  appoint  such  subordinate  officers  and  agents,  in  addition  to 
the  president  and  secretary  or  treasurer,  as  the  business  of  the 
corporation  may  require;  to  designate  the  name  of  the  office 
and  tix  the  compensation  of  the  officer. 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         461 

SEC.  3.  Special  provisions. — The  following  provisions  and 
restrictions  are  coupled  with  said  grant  of  powers:  A  failure 
to  elect  officers  at  the  proper  time  does  not  dissolve  the  corpo- 
ration, but  those  in  office  hold  until  the  election  or  appointment 
and  qualification  of  their  successors.  The  term  of  all  officers 
may  be  fixed  by  the  by-laws  of  the  corporation;  the  same  not, 
however,  to  exceed  two  years.  The  corporation  may,  by  by- 
laws, make  regulations  concerning  the  subscription  for  or 
transfer  of  stock;  fix  upon  the  amount  of  capital  to  be  invested 
in  the  enterprise;  the  division  of  the  same  into  shares;  the  time 
required  for  payment  thereof  by  the  subscribers  for  stock;  the 
amount  to  be  called  for  at  any  one  time;  and  in  case  of 
failure  of  any  stockholder  to  pay  the  amount  thus  subscribed 
by  him  at  the  time  and  in  the  amounts  thus  called,  a  right  of 
action  shall  exist  in  the  corporation  to  sue  said  defaulting  stock- 
holder for  the  same. 

See  3  Hum.,  531;  12  Lea,  252;  4  Cold.,  101. 

[SEC.  4.  Directors,  quorum;  Of  bOOkS.—  The  board  of  direc- 
tors, which  may  consist  of  five  or  more  members,  at  the  option 
of  the  corporation,  to  be  elected  either  in  person  or  by  proxy, 
by  a  majority  of  the  votes  cast,  each  share  representing  one 
vote,  shall  keep  a  full  and  true  record  of  all  their  proceedings, 
and  an  annual  statement  of  receipts  and  disbursements  shall  l>e 
copied  on  the  minutes,  subject  at  all  times  to  the  inspection  of 
any  stockholder.  The  books  of  the  corporation  shall  show  the 
original  or  subsequent  stockholders,  their  respective  interests, 
the  amount  which  has  been  paid  on  the  shares  subscribed,  the 
transfer  of  stock,  by  and  to  whom  made;  also  other  transac- 
tions in  which  it  is  presumed  a  stockholder  or  creditor  may 
have  an  interest. 

SEC.  5.  Unpaid  StOCk. — The  amount  of  any  unpaid  stock 
due  from  a  subscriber  to  the  corporation  shall  be  a  fund  for 
the  payment  of  any  debts  due  from  the  corporation,  nor  shall 
the  transfer  of  stock  by  any  subscriber  relieve  him  from  pay- 
ment, unless  his  transferee  has  paid  up  all  or  any  of  the  bal- 
ance due  on  said  original  subscription. 

See  10  Pick.  (Tenn.),  154,  608. 


•i62  ORIGINAL    CHARTER    OF    MEMPHIS    BRANCH 

SEC.  6.  Express  and  implied  powers.— By  no  implication  or 
construction  shall  the  corporation  be  deemed  to  possess  any 
powers  except  those  hereby  expressly  given  or  necessarily  im- 
plied from  the  nature  of  the  business  for  which  the  charter  is 
granted,  and  by  no  inference  whatever  shall  said  corporation 
possess  the  power  to  discount  notes  or  bills,  deal  in  gold  or 
silver  coin,  issue  any  evidence  of  debts  as  currency,  buy  and 
sell  any  agricultural  products,  deal  in  merchandise,  or  engage 
in  any  business  outside  the  purpose  of  the  charter. 

SEC.  7.  Charter  may  be  repealed  or  amended.— The  right  is 

reserved  to  repeal,  annul,  or  modify  this  charter.  If  it  is 
repealed,  or  if  the  amendments  proposed,  being  not  merely  aux- 
iliary but  fundamental,  are  rejected  by  a  vote  representing 
more  than  half  of  the  stock,  the  corporation  shall  continue  to 
exist  for  the  purpose  of  winding  up  its  affairs,  but  not  to  enter 
upon  any  new  business.  If  the  amendments  or  modifications, 
being  fundamental,  are  accepted  by  the  corporation  as  afore- 
said, in  a  general  meeting  to  be  called  for  that  purpose,  any 
minor,  married  woman,  or  other  person  under  disability,  or  any 
stockholder  not  agreeing  to  the  acceptance  of  the  modification, 
shall  cease  to  be  a  stockholder,  and  the  corporation  shall  be 
liable  to  pay  said  withdrawing  stockholders  the  par  value  of 
their  stock,  if  it  is  worth  so  much;  if  not,  then  so  much  as 
may  be  its  real  value  in  the  market  on  the  day  of  the  with- 
drawal of  said  stockholders  as  aforesaid;  Provided,  That  the 
claims  of  all  creditors  are  to  be  paid  in  preference  to  said  with- 
drawing stockholders. 

The  charter  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway  can- 
not be  amended  without  consent  of  company.  See  sec.  34  of  the  charter. 

SKC.  8.  Directors,  powers  Of. — A  majority  of  the  board  of 
directors  shall  constitute  a  quorum,  and  shall  fill  all  vacancies 
until  the  next  election.  The  first  board  of  directors  shall  con- 
sist of  the  five  or  more  corporators  who  shall  apply  for  and 
obtain  the  charter.  The  said  corporation  may  have  the  right] 
to  borrow  money  and  issue  notes  or  bonds  upon  the  faith  of 
the  corporate  property,  and  also  to  execute  a  mortgage  or 
mortgages  as  further  security  for  repayment  of  money  thus 
borrowed. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         463 

The  above  part  in  brackets  (sec.  4  to  fifth  line  of  sec.  8)  is  included  in 
all  charters  under  the  Acts  of  1875,  ch.  142,  and  amendments  thereto, 
but,  for  some  reason,  was  left  out  of  this  charter,  as  will  appear  from 
the  copy  in  the  secretary  of  state's  office,  in  book  "  F,"  p.  100.  It  should 
have  been  inserted,  as  the  statutory  charter  cannot  be  altered  at  the 
will  of  the  parties. 

SEC.  9.  Right  Of  way  two  hundred  feet.— The  said  corpora- 
tion shall  have  the  right,  in  pursuance  of  the  general  law 
authorizing  the  condemnation  of  private  property  for  works  of 
internal  improvement,  as  set  forth  in  §§  1325  to  1348  in  the 
code  (l»oth  inclusive),  to  appropriate  as  an  easement  the  right 
of  way,  not  exceeding  two  hundred  feet,  over  the  land  of  any 
person  through  which  the  line  of  the  track  may  be  located. 
Said  sections  of  the  code  are  hereby  literally  copied  and  in- 
serted, in  the  words  and  figures  following: 

SEC.  10  (1325).  Land  may  be  taken,  how.— Any  person 

or  corporation  authorized  by  law  to  construct  any  railroad, 
turnpike,  canal,  toll  bridge,  road,  causeway,  or  other  work 
of  internal  improvement  to  which  the  like  privilege  is  con- 
ceded, may  take  the  real  estate  of  individuals  not  exceeding 
the  amount  prescribed  by  law,  or  by  the  charter  under  which 
the  person  or  corporation  acts,  in  the  manner  and  upon  the 
terms  herein  provided.  (Iowa  code,  1851,  §  759.) 

(1)  Disability  of  owner  does  not  affect  right. —The  right  to  take 
land  under  the  power  of  eminent  domain  is  not  restricted  by  any  dis- 
ability of  the  owner,  who  is  entitled  to  demand  and  receive  the  value  of 
the  property,  but  must  show  title.  3  Head  (Tenn.),  63-65. 

(2)  Uy  Acts  Tennessee,  1885,  ch.  135,  the  operation  of  this  and  succeed- 
ing sections  was  extended  so  as  to  apply  and  include  the  condemnation 
and  taking  of  the  property,  privileges,  rights,  or  easements  of  private 
corporations.     See  act  itself  for  method. 

(3)  By  Acts  ISS'.i,  p.  447,  as  embodied  in  Shannon's -Code,  %  1879,  it  was 
made  unlawful  to  construct  or  use  any  steam  railway  on  any  county 
road  or  highwaj*.  without  the  consent  of  the  county  court,  to  be  granted 
in  a  method  therein  set  out. 

SEC.  11  (1326;.  Proceedings,  etc.— The  party  seeking  to 
appropriate  such  lands  shall  file  a  j>etition  in  the  circuit  court 
of  the  county  in  which  the  land  lies,  setting  forth  in  substance: 
(1)  The  parcel  of  land  a  portion  of  which  is  wanted,  and  the 
extent  wanted;  (2)  the  name  of  the  owner  of  such  land,  or,  if 


4:64:  ORIGINAL    CHARTER    OF    MEMPHIS    BRANCH 

unknown,  stating  the  fact;  (3)  the  object  for  which  the  land  is 
wanted;  (4)  a  prayer  that  a  suitable  portion  of  land  may  be 
decreed  to  the  petitioner  and  set  apart  by  metes  and  bounds. 
(Iowa  code,  1851,  §760.) 
Petition  need  not  be  sworn  to. 

SEC.  12  (1327).  Notice  to  Owner.— Notice  of  this  petition 
shall  be  given  to  the  owner  of  the  land,  or,  if  a  nonresident  of 
the  county,  to  his  agent,  at  least  five  days  before  its  presenta- 
tion. (/#.,  modified.) 

SEC.  13  (1328).  Where  owner  nonresident— if  the  owner 

is  a  nonresident  of  the  state,  or  unknown,  notice  shall  be  given 
by  publication  as  provided  in  this  code  in  similar  cases  in  chan- 
cery. 

SEC.  14:  (1329).  Proceedings  only  bind  parties.— All  parties 

having  any  interest  in  any  way  in  such  land  may  be  made 
defendants,  and  the  proceedings  will  only  cover  and  affect  the 
interest  of  those  who  are  actually  made  parties,  unborn  remain- 
dermen being,  however,  bound  by  proceedings  to  which  all 
living  persons  in  interest  are  parties. 

Tenants  for  life,  years,  and  reversioners  are  interested  parties,  and 
must  be  compensated.  2  Head,  65,  176. 

SEC.  15  (1330).  Writ  of  inquiry  of  damages.— After  the 

requisite  notice  has  been  given,  if  no  sufficient  cause  to  the  con- 
trary is  shown,  the  court  shall  issue  a  writ  of  inquiry  of  dam- 
ages to  the  sheriff,  commanding  him  to  summon  a  jury  to 
inquire  and  assess  the  damages.  (Iowa  Code,  1851,  §  763.) 

SEC.  16  (1331).  Clerk  to  issue  writ,  sheriff  to  summon 

jury. — By  consent  of  parties,  or  on  application  of  the  plaintiff, 
unless  objection  is  made  by  the  defendant,  the  writ  of  inquiry 
may  be  issued  by  the  clerk  as  of  course,  after  service  of  notice, 
on  which  the  sheriff  will  summon  the  jur}r. 

SEC.  17  (1332).  Jury  to  be  disinterested.— The  jurors  shall 
not  be  interested  in  the  same  or  a  similar  question,  and  shall 
possess  the  qualifications  of  other  jurors,  and  may  be  nominated 
by  the  court,  selected  by  consent  of  the  parties,  or  summoned 
by  the  sheriff. 

SEC.  18  (1333).   Failure  to  attend.— If  named  by  the  court, 


NASHVILLE,    CHATTANOOGA    <fc    ST.    LOUIS    RAILWAY.         465 

and  the  persons  named  are  unable  to  attend  when  summoned, 
the  place  of  such  persons  shall  be  supplied  by  the  sheriff. 

SEC.  19  (1334).  Number  of  jurors;  challenges.— The  jury 

will  consist  of  five  persons,  unless  the  parties  agree  upon  a  dif- 
ferent number,  and  either  party  may  challenge  for  cause,  or 
peremptorily,  as  in  other  civil  cases. 
See  11  Heis.,  56;  12  Heis..  56,  57. 

SEC.  20  (1335).  Notice  of  taking  inquest— The  sheriff  shall 

give  the  parties  or  their  agents,  if  residents  of  the  county,  three 
days'  notice  of  the  time  and  place  of  taking  the  inquest,  unless 
the  time  has  been  fixed  by  the  order  of  the  court.  (Iowa  Code, 
1851,  §771.) 

SEC.  21  (1336).  Jury  to  be  sworn  by  sheriff.— The  jury, 

before  proceeding  to  act,  shall  be  sworn  by  the  sheriff,  fairly 
and  impartially,  without  favor  or  affection,  to  lay  off,  by  metes 
and  bounds,  the  land  required  for  the  proposed  improvement, 
and  to  inquire  and  assess  the  damages. 

SEC.  22  (1337).  To  examine  ground  and  assess  damages. 

—The  jury  will  then  proceed  to  examine  the  ground,  and  may 
hear  testimony,  but  no  argument  of  counsel,  and  set  apart,  by 
metes  and  bounds,  a  sufficient  quantity  of  land  for  the  purposes 
intended,  and  assess  the  damages  occasioned  to  the  owner 
thereby.  (Iowa  Code,  1851,  §768.) 

See  3  Lea,  482. 

SEC.  23  (1338).  Damages,  hOW  estimated.— In  estimating 
the  damages  the  jury  shall  give  the  value  of  the  land  with- 
out deduction,  but  incidental  benefits  which  may  result  to  the 
owner  by  reason  of  the  proposed  improvement  may  be  taken 
into  consideration  in  estimating  the  incidental  damages. 

For  full  discussion  of  this,  see  "Eminent  Domain"  herein.  Refer  to 
index. 

SEC.  24  (1339).   Report  returned  in  writing.— The  report 

of  the  jury  shall  be  reduced  to  writing,  signed  by  a  majority 
of  the  jurors,  delivered  to  the  sheriff,  and  by  him  returned  into 
court. 

SEC.  25  (1340).  Confirmation  Of  report.— If  no  objection  is 
made  to  the  report,  it  is  confirmed  by  the  court,  and  the  land 

30 


466  ORIGINAL    CHARTER    OF    MEMPHIS    BRANCH 

decreed  to  the  petitioner,  upon  payment  to  the  defendants,  or 
to  the  clerk  for  their  use,  of  the  damages  assessed,  with  costs. 
(/&.,  §  775,  modified.) 

SEC.  26  (1341).  Exception  to  report  and  new  writ.— Either 

party  may  object  to  the  report  of  the  jury,  and  the  same  may, 
on  good  cause  shown,  be  set  aside,  and  new  writ  of  inquiry 
awarded.  (Act  1849-50,  ch.  72,  sec.  5.) 

SEC.  27  (1342).  Appeal ;  new  trial.— Either  party  may  also 
appeal  from  the  finding  of  the  jury,  and,  on  giving  security 
for  the  costs,  have  a  trial  anew  before  a  jury  in  the  usual  way. 
(Ib. ,  modified.) 

See  12  Heis.  (Teun.),  57. 

SEC.  28  (1343).  Costs  against  appellant,  when  not— if  the 

verdict  of  the  jury  upon  the  trial  affirms  the  finding  of  the  jury 
of  inquest,  or  is  more  unfavorable  to  the  appellant  than  the 
finding  of  such  jury,  the  costs  shall  be  adjudged  against  such 
appellant,  otherwise  the  court  may  award  costs  as  in  chancery 
cases.  (/i.) 

SEC.  29  (1344V  Appeal  does  not  suspend  work,  how.— The 

taking  an  appeal  does  not  suspend  the  operations  of  the  peti- 
tioner on  the  land,  provided  such  petitioner  will  give  bond,  with 
good  security,  to  be  approved  by  the  clerk,  in  double  the 
amount  of  the  assessment  of  the  jury  of  inquest,  payable  to  the 
defendant,  and  conditioned  to  abide  by  and  perform  the  final 
judgment  in  the  premises. 

SEC.  30  (1345).  Preliminary  surveys;  damages.— A  per- 
son or  company  actually  intending  to  make  application  for  the 
privileges  herein  contemplated,  and  entering  upon  the  land  of 
another  for  the  purpose  of  making  the  requisite  examinations 
and  surveys,  and  doing  no  unnecessary  injury,  is  liable  only 
for  the  actual  damage  done;  and  sued  in  such  case,  the  plaintiff 
shall  recover  only  as  much  costs  as  damages.  (Iowa  Code, 
1*51,  £  778.) 

SEC.  si  1 1346).  Damages  to  be  prepaid,  or -bond  on  appeal. 

—No  person  or  company  shall,  however,  enter  upon  such  land 
for  the  purpose  of  actually  occupying  the  right  of  way  until  the 
damages  assessed  by  the  jury  of  inquest  and  the  cost  have  been 


NA8HVILLE,    CHATTANOOGA    A   ST.    LOUIS   RAILWAY.         467 

actually  paid;  or,  if  an  appeal  has  been  taken,  until  the  bond 
has  been  given  to  abide  by  the  final  judgment,  as  before  pro- 
vided. 

See  6  Cold.,  162;  7  Heis.,  518,  535;  13  Lea,  671. 

SEC.  32  (1347).  Owner  may  have  inquest  or  sue  for  dam- 
ages, when;  proceedings.— If,  however,  such  person  or  company 
h:i>  actually  taken  possession  of  such  land,  occupying  it  for  the 
purpose  of  internal  improvement,  the  owner  of  such  land  may 
petition  for  a  jury  of  inquest,  in  which  case  the  same  proceed- 
ings may  be  had,  as  near  as  may  be,  as  hereinbefore  provided; 
or,  he  may  sue  for  damages  in  the  ordinary  way,  in  which  case 
the  jury  shall  lay  off  the  land  by  metes  and  bounds,  and  assess 
the  damages  as  upon  the  trial  of  an  appeal  from  the  return  of 
a  jury  of  inquest. 

See  2  Head,  174,  65;  3  Lea,  480;  13  Lea,  670. 

SEC.  33  (1348).  Limitation  of  proceedings  by  owner.— The 

owners  of  land  shall,  in  such  cases,  commence  proceedings 
within  twelve  months  after  the  land  has  been  actually  taken 
possession  of,  and  the  work  of  proposed  internal  improvement 
begun,  saving,  however,  to  unknown  owners  and  nonresidents 
twelve  months  after  actual  knowledge  of  such  occupation,  not 
exceeding  three  years,  and  saving  to  persons  under  disabilities 
of  infancy,  coverture,  and  unsoundness  of  mind  twelve  months 
after  such  disability  is  removed,  but  not  exceeding  ten  years. 
See  12  Heis.,  623.  See,  also,  '•  Eminent  Domain. "herein;  refer  to  index. 

[SEC.  34.  Gauge;  transportation  charges;  construction  of 

tracks  On  highways. — The  corporation  is  authorized  to  adopt 
such  gauge  as  they  may  prefer.  The  charge  for  transportation 
shall  not  exceed  twenty-five  cents  per  hundred  pounds  on  heavy 
articles,  and  ten  cents  per  cubic  foot  on  articles  of  measure- 
ment, for  every  hundred  miles  transported,  and  four  cents  per 
mile  for  every  passenger,  with  power  to  make  special  contracts 
with  shippers  on  their  roads  in  regard  to  rate  of  freight,  so  as 
not  to  exceed  the  amounts  herein  designated.  The  line  of 
track  of  the  road  shall  be  so  constructed  so  as  not  to  interfere 
with  convenient  travel  of  the  public  along  the  highways,  coun- 


468  ORIGINAL    CHARTER    OF    MEMPHIS    BRANCH 

try  roads,  streets  and  alleys  of  cities,  towns,  and  villages,  and 
so  as  to  allow  carts,  wagons,  carriages,  and  other  vehicles  con- 
veniently and  safely  to  pass  over  or  under  the  line  of  the  track, 
and  so  as  not  to  intercept  traveling  on  foot  or  horseback,  or  in 
vehicles  of  any  kind,  from  the  necessary  and  proper  use  of  the 
public  roads,  streets,  or  alleys,  in  the  usual  and  proper  mode 
for  their  convenience. 

By  Acts  Term.,  1885,  ch.  20,  all  railroad  companies  in  the  state  were 
authorized  to  select  and  alter  the  gauge  of  their  road  at  pleasure. 

SEC.  35.  Crossings;  Signboards.— Boards  well  supported 
by  posts,  or  otherwise,  shall  be  placed  and  constantly  kept 
across  each  public  road,  when  the  same  is  crossed  on  the  same 
level  by  the  track  of  the  railway,  the  boards  to  be  elevated  so 
as  not  to  obstruct  travel,  and  on  each  side  of  said  boards  there 
shall  be  printed  in  large  letters,  easily  to  be  seen  by  the  trav- 
eler, the  words  "  Railroad  Crossing — Look  out  for  the  Cars." 
Said  boards  need  not  be  put  up  at  the  crossing  of  streets  and 
alleys  in  cities,  towns,  and  villages,  but  such  railroad  company 
shall  be  subject  to  such  proper  regulations  made  by  municipal 
authorities  in  pursuance  of  general  municipal  powers,  regulat- 
ing speed,  passage,  and  flagman  in  such  municipalities  and  at 
crossings;  and  when  there  are  sidings  and  switches,  the  whistle 
shall  always  be  blown  at  a  distance  of  not  less  than  two  hun- 
dred and  fifty  yards  from  every  crossing  of  a  public  road. 
When  land  on  both  sides  of  the  track  is  owned  by  the  same 
proprietor,  convenient  crossings  shall  be  made  and  kept  up  at 
the  expense  of  the  corporation,  for  the  use  of  said  proprietor, 
and  all  necessary  cow-gaps  made. 

SEC.  36.  Regulations  for  running  trains;  fare  must  be 

paid. — The  board  of  directors  shall  fix  the  regular  times  for  the 
running  of  trains  for  the  transportation  of  passengers  and  prop- 
erty, and  shall  furnish  sufficient  accommodations  for  the  safe, 
comfortable,  and  convenient  transportation,  and  shall  take, 
transport,  and  discharge  such  passengers  and  property  at, 
from,  and  to  such  places  on  the  due  payment  of  freights,  tolls, 
and  fare  legally  authorized  to  be  charged  therefor,  and,  in  case 
of  the  refusal  of  said  corporation,  their  officers  or  agents,  to 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS   RAILWAY.         469 

take  and  transport  any  passenger,  or  to  deliver  the  same,  or 
either  of  them,  at  the  regular  and  appointed  time,  such  corpo- 
ration shall  pay  to  the  party  aggrieved  all  damages  thereby 
suffered,  with  costs  of  suit.  If  any  passenger  refuse  to  pay 
his  toll  or  fare,  the  conductor  may  put  him  off  the  cars  at  any 
station  or  convenient  point  where  said  passenger  can  step  on 
land. 

SEC.  37.  Prohibited  contracts ;  must  receive  freight  from 

Other  roads. — The  corporation  shall  make  no  contract  giving 
any  person  a  preference  in  the  speedy  shipment  of  freights. 
This  corporation  shall  receive  on  their  road  full  freighted  cars 
from  other  roads,  and  transport  them,  without  breaking  bulk, 
to  the  place  of  destination,  charging  for  the  goods,  wares,  and 
merchandise  therein  no  greater  rate  of  freight  than  is  charged 
for  similar  goods,  wares,  and  merchandise  in  their  own  cars, 
and  return  said  cars  free  of  charge;  Provided,  The  cars  thus  to 
be  received  are  good  and  substantial;  And  also  provided.  The 
distance  said  wares  and  merchandise  are  to  be  transported  is 
not  less  than  twenty  miles. 

SEC.  38.  Officers  and  directors,  capital  stock,  shares,  books. 

— The  said  h've  or  more  corporators  shall,  within  a  convenient 
time  after  the  registration  of  this  charter  in  the  office  of  the 
secretary  of  state,  select  from  their  number  a  president,  secre- 
tary and  treasurer,  or  the  last  two  offices  may  be  combined  into 
one,  and  shall  not  necessarily  be  stockholders,  said  president 
and  the  other  corporators  to  constitute  the  first  board  of  di- 
rectors. The  board  of  directors  may  fix  the  amount  of  capital 
stock  of  the  company  and  the  number  of  shares  into  which  the 
same  may  be  divided,  and  under  their  direction  subscription 
books  may  be  opened  to  obtain  stock,  all  other  persons  having 
an  equal  right  with  said  original  corporators  to  subscribe  for 
stock  until  the  full  amount  of  said  capital  stock  is  subscribed. 
When  a  sufficient  amount  of  stock  is  subscribed,  notice,  per- 
sonal or  by  advertisement  in  a  newspaper  where  the  principal 
office  of  the  corporation  is  to  be  kept,  is  to  l>e  given  of  the  time 
and  place  of  an  election  of  officers.  The  result  of  all  elections 
is  to  be  determined  by  a  majority  of  the  votes  cast,  each  share 
to  represent  one  vote. 


470  ORIGINAL    CHARTER    OF    MEMPHIS    BRANCH 

SEC.  39.  Directors  may  increase  Capital.— The  board  of  di- 
rectors may  at  any  time  increase  the  capital  stock  if  the  neces- 
sities of  the  corporation,  in  their  estimation,  require  said  in- 
crease. 

SEC.  40.  May  enter  upon  private  lands.— The  company,  by 

its  officers  or  agents,  may  enter  upon  the  lands  of  private  per- 
sons for  the  purpose  of  making  surveys,  estimates,  and  location 
of  route. 

SEC.  41.  Shares  of  stock  personalty.— The  stock  is  to  be 

impressed  with  the  character  of  personal  property.] 

The  above  part  in  brackets  (sees.  34  to  41)  is  included  in  all  charters 
under  the  Acts  of  1875,  ch.  142,  and  amendments  thereto,  but  for  some 
reason  was  left  out  of  this  charter,  as  will  appear  from  the  copy  in  the 
secretary  of  state's  office  of  Tennessee,  in  book  "  F,"  p.  106.  It  should 
have  been  inserted,  as  the  statutory  charter  cannot  be  altered  at  the 
will  of  the  parties. 

We,  the  undersigned  citizens,  not  under  the  age  of  twenty- 
one  years,  apply  to  the  State  of  Tennessee,  by  virtue  of  the 
law  of  the  land,  for  a  charter  of  incorporation  for  the  purposes 
and  with  the  powers,  etc. ,  declared  in  the  foregoing  instrument. 
Witness  our  hands,  this  twenty-eighth  day  of  December, 
1886. 

JAMES  T.  GRAY, 

W.  D.  BETHEL, 

J.  M.  HAMILTON, 

A.  S.  BUFORD, 

CHARLES  WATKINS, 

T.  C.  LEAKE,  JR., 

J.  J.  MONTAGUE, 

NAPOLEON  HILL, 

NATHANIEL  BAXTER,  JR., 

J.  B.  PACE, 

E.  D.  CHRISTIAN, 

THOS.  C.  WILLIAMS, 

R.  H.  TEMPLE, 

A.  L.  CRAWFORD, 

JOHN  OVERTON,  JR. 


Witness  as  to  all  the  signatures: 


Ro.  L.  TRAYLOR. 


NASHVILLE,  CHATTANOOGA  <fe  ST.  LOUIS  RAILWAY.      471 

STATE  OF  TENNESSEE,  ) 

Davidson  County.       \ 

Personally  appeared  before  me,  W.  T.  Smith,  clerk  of  the 
county  court  of  said  county,  Robert  L.  Traylor,  a  subscribing 
witness  to  the  attached  application  for  a  charter  under  the  laws 
of  Tennessee,  who,  being  first  duly  sworn,  deposes  and  says 
that  he  is  personally  acquainted  with  the  within  named,  A.  S. 
Buford,  J.  B.  Pace,  T.  C.  Leake,  Jr.,  R.  H.  Temple,  E.  D. 
Christian,  Thos.  C.  Williams,  Chas.  Watkins,  James  T.  Gray, 
J.  J.  Montague,  A.  S.  Crawford,  W.  D.  Bethel,  Napoleon 
Hill,  John  Overton,  Jr.,  J.  M.  Hamilton,  and  Nathaniel  Bax- 
ter, Jr.,  the  corporators,  and  that  they  acknowledged  the  same, 
in  his  presence,  to  be  their  act  and  deed  for  the  purposes  therein 
contained;  and  the  said  Robert  L.  Traylor  further  deposes  and 
says  that  said  application  was  signed  in  his  presence,  and  that 
the  signatures  thereto  attached  are  the  signatures  of  said  cor- 
porators. Witness  my  hand,  at  office,  this  the  twenty-eighth 
day  of  December,  1886. 

W.  T.  SMITH,  Clerk. 

The  above  charter  was  registered  in  Davidson  county.  Tenn.,  in  book 
88,  p.  433.  on  December  38,  1886,  and  in  the  secretary  of  state's  office  De- 
cember 2U,  1886,  in  book  liF,"  p.  106. 


472  LEASES    RELATING   TO    MEMPHIS   BRANCH 


CHAPTER  XXXIX. 

TEMPORARY  AND   PERMANENT  LEASES   OF   TENNESSEE  MID- 
LAND RAILROAD  AND  THE   PADUCAH,  TENNESSEE 
&  ALABAMA  RAILROAD.— DEED  TO  L.  &  N. 
OF  TENNESSEE  MIDLAND  RY. 

L.  &N.  R.  R.   CO.,     ) 

TO  >  Temporary  lease  of  both  roads. 

N.,  C.  &  St.  L.  Ry.  ) 

WHEREAS,  On  Friday,  the  eleventh  day  of  October,  1895,  at 
a  sale  held  at  Paducah,  Kentucky,  by  the  special  masters  of  the 
circuit  court  of  the  United  States  for  the  district  of  Kentucky, 
at  Paducah,  and  for  the  eastern  division  of  the  western  district 
of  Tennessee,  at  Jackson,  pursuant  to  the  final  decree  of  fore- 
closure and  sale  made  by  the  said  circuit  court  for  the  district 
of  Kentucky,  at  Paducah,  and  by  the  said  circuit  court  for  the 
eastern  division  of  the  western  district  of  Tennes- 
see, at  Jackson,  in  the  suit  pending  in  each  of  said 
courts  of  the  St.  Louis  Trust  Co.,  complainant,  v.  Paducah^ 
Tennessee  &  Alabama  Railroad  Co. ,  defendant,  J.  W.  Phillips, 
of  the  city  of  St.  Louis,  and  State  of  Missouri,  became  the  pur- 
chaser of  the  property  described  in  said  final  decree  of  foreclos- 
ure and  sale,  to  wit:  The  railroad  of  the  Paducah,  Tennessee 
&  Alabama  Railroad  Company  as  therein  described,  and  each 
and  all  the  other  property,  rights,  franchises,  and  things  of 
every  kind  and  nature  described  in,  and  directed  to  be  sold  by, 
said  decree.  For  a  more  particular  description  of  all  of  which, 
reference  is  made  to  said  final  decree  of  foreclosure  and  sale  in 
said  suits;  and, 

WHEREAS,  On  Thursday,  the  tenth  day  of  October,  1895,  at 
a  sale  held  at  Memphis,  Tennessee,  by  the  special  masters  of 
the  circuit  court  of  the  United  States  for  the  western  division 
of  the  western  district  of  Tennessee,  at  Memphis,  pursuant  to 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         473 

the  final  decree  of  foreclosure  and  sale  made  by  the  said  circuit 
court  for  the  western  division  of  the  western  district 
of  Tennessee,  at  Memphis,  in  the  suit  pending 
therein  of  the  /St.  Louis  Trust  Co.,  complainant,  v.  Tennessee 
Midland  Railway  Co.,  defendant,  said  J.  W.  Phillips,  of  the 
city  of  St.  Louis,  State  of  Missouri,  became  the  purchaser  of 
the  property  described  in  said  final  decree  of  foreclosure  and 
sale,  to  wit:  The  railroad  of  the  Tennessee  Midland  Railway 
Company  as  therein  described,  and  each  and  all  the  other  prop- 
erty, rights,  franchises,  and  things  of  every  kind  and  nature 
described  in,  and  directed  to  be  sold  by,  said  decree.  For  a 
more  particular  description  of  all  which,  reference  is  made  to 
said  tinal  decree  of  foreclosure  and  sale  in  said  suit;  and, 

WHEREAS,  Said  J.  W.  Phillips  has  sold  all  of  the  above  de- 
scribed property  to  the  Louisville  &  Nashville  Railroad  Com- 
pany for  the  sum  of  three  million  one  hundred  and  sixteen  thou- 
sand ($3,116,000)  dollars,  on  which  the  sum  of  one  hundred 
thousand  dollars  has  been  paid  in  cash,  in  consequence  of  which 
payment  said  Louisville  &  Nashville  Railroad  Company  has  this 
day  been  let  into  possession  of  all  the  above  described  proper- 
ties, and  the  remainder  of  the  amount,  viz.,  three  million  and 
sixteen  thousand  dollars,  with  interest,  is  to  be  paid  on  or  be- 
fore the  expiration  of  six  calendar  months  from  this  date,  and, 
pending  such  payment  in  full,  the  instruments  of  transfer  or 
conveyance  of  title  of  all  of  said  properties  are  to  be  deposited 
in  escrow  with  the  Mechanics'  National  Bank,  of  the  city  of 
New  York,  to  be  by  it  delivered  to  the  said  Louisville  &  Nash- 
ville Railroad  Company,  or  its  assigns,  on  the  payment  to  said 
Mechanics'  National  Bank  of  said  balance  and  interest;  and, 

WHEREAS,  It  is  the  intention  of  the  parties  hereto  that  all 
of  said  properties  hereinabove  described  and  referred  to  shall 
be  leased,  granted,  and  demised  to  the  Nashville,  Chattanooga 
&  St.  Louis  Railway  for  the  full  term  of  ninety-nine  years  from 
this  date,  and  the  formal  and  permanent  indenture  of  lease, 
containing  all  the  various  terms,  conditions,  and  covenants 
upon  which  the  same  is  made,  is  to  be  executed  by  said  Louis- 
ville &  Nashville  Railroad  Company  to  the  s.iid  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  so  soon  as  the  Louisville  &  Nash- 


474  LEASES    RELATING    TO    MEMPHIS    BRANCH 

ville  Railroad  Company's  title  to  the  demised  property  shall  be 
completed  by  the  payment  to  said  Mechanics'  National  Bank  of 
the  said  balance  and  interest,  and  by  the  unconditional  delivery 
to  the  Louisville  &  Nashville  Railroad  Company  of  said  instru- 
ments of  transfer  or  conveyance  of  the  title  of  all  of  said  prop- 
erties; and,  meanwhile,  it  is  desired  that  the  said  Nashville, 
Chattanooga  &  St.  Louis  Railway  shall  have  possession  of  and 
operate  all  the  properties  hereinabove  described  and  referred  to. 

Know  all  men  by  these  presents,  That  the  Louisville  &  Nash- 
Conveyance  v^e  ^ailroa^  Company  does  hereby  grant,  demise, 
clause.  ancj  }ease  t0  the  Nashville,  Chattanooga  &  St.  Louis 

Railway  all  of  the  properties  hereinabove  described  and  referred 
to,  from  this  date  until  the  said  formal  and  permanent  lease 
hereinabove  referred  to  shall  be  executed. 

To  have  and  to  hold  the  same  unto  the  said  Nashville,  Chat- 
tanooga &  St.  Louis  Railway,  its  successors  and  assigns,  and 
said  Nashville,  Chattanooga  &  St.  Louis  Railway  for  itself,  its 
successors  and  assigns,  hereby  agrees  to  take,  have,  and  hold 
the  same  upon  the  following  terms,  conditions,  and  covenants, 
viz. : 

1.  The  Nashville,  Chattanooga  &  St.   Louis   Railway  shall 
pay,  semiannually,  during  the  continuance  of  this  lease,  as  rent 
Rent  and         °^    sa^    properties   above    granted,    demised,    and 
now  paid.         leased,   at  the  rate  of  one   hundred  and  fifty-five 
thousand  eight  hundred  dollars  per  annum,  being  five  per  cent, 
on  three  million  one  hundred  and   sixteen  thousand  dollars, 
said  purchase  price. 

2.  Said  Nashville,  Chattanooga  &  St.  Louis  Railway  shall, 
during  the  continuance  of  this  lease,  keep,  preserve,  and  main- 
Lessee  to  keep  tain  the  properties  hereby  demised  in  good  working 
road  in  good  J 

repair.  condition  and  repair  as  a  first-class  railroad,  and 

will  fully  perform  towards  the  public  all  obligations  due  to  it 
from  the  Louisville  &  Nashville  Railroad  Company  in  respect 
to  the  properties  hereby  demised. 

3.  Said  Nashville,  Chattanooga  &  St.  Louis  Railway  shall, 
Lessee  to  pay    dlu'ing  the  continuance  of  this  lease,  pay  all  taxes 

and  assessments  of  whatever  nature  or  kind  that 
may  be  levied  or  assessed  against  the  properties  demised,  or 


NASHVILLE,    CHATTANOOGA    4    ST.    LOL'18    RAILWAY.         475 

any  part  thereof,  .and  will  preserve  the  said  properties,  and 
each  and  every  part  thereof,  free  from  any  lien  or  charge  what- 
soever, by  reason  of  any  taxes  or  assessments  of  any  kind  or 
nature  whatsoever;  and  said  Nashville,  Chattanooga  &  St.  Louis 
Railway  further  agrees  to  discharge  all  obligations  of  every 
kind  arising,  which  become,  or  might  become,  by  judgment  of 
court  or  otherwise,  liens  upon  the  demised  properties  or  any 
part  thereof. 

4.  So  soon  as  the  instruments  or  conveyances' for  the  proper- 
ties hereinabove  described  and  referred  to,  from  J.  W.  Phillips 
to  the  Louisville  &  Nashville  Railroad  Company,  shall  be  de- 
livered unconditionally  to  the  said  Louisville  &  Nashville  Rail- 
road Company  by  said  Mechanics'  National  Bank,  as  aforesaid, 
and  the  said  Louisville  &  Nashville  Railroad  Company  shall 
execute  and  deliver  to  said  Nashville,  Chattanooga  &  St.  Louis 
Railway  a  formal  lease  for  the  full  term  of  ninety-  Formanease 
nine  years  from  this  date  for  the  properties  herein-  Provldecl  for- 
above  described  and  referred  to,  this  lease  shall  terminate  and 
be  of  no  further  effect. 

It  is  understood  between  the  parties  hereto  that  it  is  the  pur- 
pose of  the  Louisville  &  Nashville  Railroad  Company  to  execute 
a  mortgage  upon  all  the  properties  hereinabove  described  and 
referred  to,  for  the  purpose  of  securing  the  payment  of  bonds 
to  be  issued  at  the  rate  of  §20,000  per  mile  for  each  mile  of 
the  railroads  hereinabove  described  and  referred  to,  making 
the  total  issue  of  bonds  upon  the  mileage  now  existing  rive  mil- 
lion one  hundred  and  twenty  thousand  dollars;  and  that  this 
lease  and  the  formal  ami  permanent  lease  to  be  hereafter  exe- 
cuted between  the  parties,  as  hereinabove  provided,  are  each 

and  l>oth  to  be  subject  to  the  lien  of  the  said  mort-  . 

1  Lease  to  be 

gage,  which  said  mortgage  is  to  be  executed  when  ^/-"A0^ 
the  title   of   the  Louisville  &  Nashville   Railroad  L-*N.  R.  R. 
Company  shall  be  made  complete  by  the  unconditional  delivery 
to  it  of  the  instruments  of  transfer  or  conveyance  by  the  Me- 
chanics' National  Bank  as  aforesaid.     Of  the  said  bonds,  three 
million  one  hundred  and  sixteen  thousand  dollars  are  to  l>e  is- 
sued on  account  of  the  purchase  price  of  said  properties,  as 


476  LEASES    RELATING    TO    MEMPHIS    BRANCH 

aforesaid,  and  other  of  said  bonds  may  be  issued,  from  time  to 
time,  as  agreed  on  by  the  parties  hereto;  or,  in  the  event  of 
Arbitration  to  disagreement,  as  determined  by  arbitration,  on  ac- 
be  had.  when.  connt  of  permanent  improvements  and  betterments 
of  the  demised  properties,  the  total  on  this  account  not  to  ex- 
ceed one  million  two  hundred  and  thirty-six  thousand  dollars  in 
amount,  and  on  account  of  purchase  of  additional  equipment 
for  the  demised  properties,  the  total  on  this  account  not  to  ex- 
ceed seven  hundred  and  sixty  eight  thousand  ($768,000)  dol- 
lars, and  the  said  Nashville,  Chattanooga  &  St.  Louis  Railway 
Conditional  *s  ^°  Pa^'  un(^er  the  permanent  lease,  as  rent  and 
rent>  additional  rent,  semiannually,  at  the  rate  of  not 

more  than  five  per  cent,  per  annum  on  the  amount  of  bonds 
issued  to  fund  the  first  cost  of  the  property,  and  to  be  issued 
from  time  to  time  for  permanent  improvements  and  better- 
ments, and  for  additional  equipment.  The  terms  of  these  last 
mentioned  provisions,  as  well  as  all  other  matters  pertaining  to 
the  lease,  shall  be  set  out  in  detail  in  the  final  and  permanent 
lease  to  be  hereafter  executed,  as  hereinabove  stated. 

An  inventory  containing  a  further  description  of  the  proper- 
ties demised  is  attached  hereto  and  made  a  part  hereof. 

In  testimony  whereof,  the  parties  hereto  have  hereunto  sub- 
scribed their  names  by  their  respective  presidents,  and  affixed 
their  respective  corporate  seals,  attested  by  their  respective 
secretaries,  this  the  fourteenth  day  of  December,  1895. 

Executed  in  duplicate. 

LOUISVILLE  &  NASHVILLE  RAILROAD  Co., 

[SEAL.]  By  M.  H.  SMITH,  President. 

Attest:  J.  H.  ELLIS,  Secretary. 

NASHVILLE,  CHATTANOOGA  &  St.  Louis  RAILWAY, 

[SEAL.]  By  J.  W.  THOMAS,  President. 

Attest:  J.  H.  AMBROSE,  Secretary. 

Lease,  where  registered. — The  foregoing  lease  was  properly  acknowl- 
edged by  both  companies,  and  registered  in  the  office  of  the  county  court 
of  McCracken  county,  Ky.,  on  April  18,  1896;  in  office  of  county  court  of 
Marshall  county,  Ky..  April  22.  1S96;  in  office  of  county  court  of  Callo- 
way  county,  Ky. .  April  27.  1896;  in  office  of  county  court  of  Graves 
county,  Ky.,  May  4,  1896;  and  in  office  of  secretary  of  state  of  Kentucky, 
May  16,  1896. 


NASHVILLE,    CHATTANOOGA   <fe    ST.    LOUIS    RAILWAY.         477 

PERMANENT  OR  FORMAL  LEASE  FOR  NINETY- 
NINE  YEARS. 

L.  &  N.  11.  K.  Co.,    i 

TO  J-  Formal  lea*e  of  loth  road*. 

N.,  C.  &  ST.  L.  RY.  ) 

This  indenture,  entered  into  this  ninth  day  of  September, 
1896,  between  the  Louisville  &  Nashville  Railroad  Company, 
first  party,  and  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way, second  party,  witnesses: 

That  the  first  party,  in  consideration  of  the  punctual  pay- 
ment of  the  rents  and  the  faithful  performance  of  the  conditions 
and  covenants  hereinafter  reserved  and  contained,  does  hereby 
grant,  demise,  and  lease  to  the  second  party  all  and  singular 
the  railroads  now  constituting  the  Paducah  &  Memphis  Divis- 
ion of  the  Louisville  &  Nashville  Railroad,  which  are  more 
particularly  described  as  follows: 

The  railroad  formerly  of  the  Paducah,  Tennessee  &  Alabama 
Railroad  Company,  extending  from  within  the  citv 

*     P.  T.  Ic  A.  R  R 

of  Paducah,  in  the  State  of  Kentucky,  and  running 
thence  in  a  southerly  direction  through  the  counties  of  Mc- 
Cracken,  Graves,  Marshall,  and  Calloway,  in  the  State  of  Ken- 
tucky; and  thence  through  the  counties  of  Henry,  Carroll,  and 
Henderson,  in  the  State  of  Tennessee,  to  a  junction  with  the 
Tennessee  Midland  Railway  at  or  near  the  town  of  Lexington, 
in  said  county  of  Henderson,  and  formerly  known  as  the  Padu- 
cah, Tennessee  &  Alabama  Railroad,  being  about  one  hundred 
and  eighteen  and  six-tenths  miles  in  length; 

Also,  the  railroad  formerly  of  the  Tennessee  Midland  Railway 
Company,  extending  from  within  the  city  of  Mem- 

,.      .      .,      u.  f,p  .  Tenn.Mld.  Ry. 

phis,  in  the  State  of  Tennessee,  and  running  thence 

in  an  easterly  direction  through  the  counties  of  Shelby,  Fay- 
ette,  Hardeman,  Madison,  Henderson,  and  Decatur  to  Perry  - 
ville,  on  the  west  bank  of  the  Tennessee  river,  in  said  count}' 
of  Decatur,  and  formerly  known  as  the  Tennessee  Midland 
Railway,  being  about  one  hundred  and  thirty-five  and  six-tenths 
miles  in  length; 

Also,  the  roadbed,  tracks,  switches,  side  tracks,  rails,  ties, 


478  LEASES    RELATING    TO    MEMPHIS    BRANCH 

fastenings,  ways,  easements,  rights  of  way,  culverts,  bridges, 
viaducts,  trestles,  fences,  and  other  structures,  and  depots,  sta- 
other  propert  ^on  nouses»  machine  shops,  coal  bins,  engine  houses, 
leased.  car  houses,  freight  houses,  wood  houses,  ware- 

houses, and  other  buildings,  water  tanks,  turntables,  docks, 
wharves,  telegraph  lines,  superstructures,  erections,  and  fix- 
tures, and  the  several  lots,  pieces,  and  parcels  of  land  on  which 
the  same  are  or  may  be  located,  and  all  other  property  forming 
part  of  said  Paducah,  Tennessee  &  Alabama  Railroad,  or  of 
said  Tennessee  Midland  Railway,  or  in  any  manner  appurtenant 
to  either,  owned  by  the  Louisville  &  Nashville  Railroad  Com- 
pany; 

Also,  all  the  engines,  locomotives,  tenders,  cars,  rolling 
stock,  and  other  equipment,  machinery,  tools,  implements,  sup- 
Roiiing  stock  P^es?  fuel,  and  materials  owned,  held,  used,  or 
acquired  by  the  first  party  in  constructing,  operat- 
ing, maintaining,  repairing,  or  replacing  said  railroads  herein- 
above  described,  or  either  of  them,  or  any  part  thereof; 

Also,  all  the  rights,  franchises,  privileges,  and  immunities 
of  the  Louisville  &  Nashville  Railroad  Company  in  respect  of, 
Franchises  aru^  pertaining  or  relating  to,  said  railroads  herein- 
etc..pass.  above  described,  or  either  of  them,  or  any  part 
thereof,  and  all  the  reversions,  remainders,  tolls,  incomes, 
rents,  issues,  and  profits  thereof,  and  all  and  singular  all  other 
property  and  rights  of  property  of  every  kind  and  nature  of 
the  first  party,  wherever  situated  or  however  held,  for  use  in 
connection  with  or  for  the  purposes  of  said  railroads  herein- 
above  described,  or  either  of  them,  or  any  part  thereof; 

To  have  and  to  hold  the  same  unto  the  said  second  party,  its 
successors  and  assigns,  for  the  full  term  of  ninety-nine  years 
Duration  fi'om  the  fourteenth  day  of  December,  1895,  until 
the  fourteenth  day  of  December,  1994,  and  the  sec- 
ond party,  for  itself,  its  successors  and  assigns,  hereby  agrees 
to  take,  have,  and  hold  the  same  upon  the  following  rents,  con- 
ditions, and  covenants,  viz. : 

ARTICLE  1 .  The  second  party  agrees  to  pay  as  rent  for  all 
of  the  properties  granted,  demised,  and  leased,  the  sum  of  one 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         479 

hundred  and  fifty-four  thousand  six  hundred  and  fifty  ($154,- 
650)  dollars  annually  during  the  said  term,  said  Rent  aad 
rent  being  at  the  rate  of  five  percent,  per  annum  tow  paid, 
on  $3,093,000,  the  purchase  price  paid  by  the  first  party  for 
the  said  properties,  the  said  rent  to  be  paid  semiannually  in 
two  equal  installments,  on  the  first  day  of  March  and  first  day 
of  September  in  each  year,  at  the  first  party's  office  in  New 
York  City. 

ART.  2.  This  lease  is  made  subject  to  a  mortgage  or  deed  of 
trust  from  the  Louisville  &  Nashville  Railroad  Company  to  the 
Manhattan  Trust  Company,  bearing  date  the  first  Lease  subject 
»lav  of  February,  1806,  and  known  as  the  "  Padu-  L.&N.R.  R. 
can  &•  Memphis  Division   fifty-year  four  per  cent,  gold  first 
mortgage,"  being  a  mortgage  upon  the  properties  hereby  de- 
mised, to  secure  an  issue  of  five  million  dollars  of  bonds;  and 
the  lien  of  the  said  mortgage,  and  of  the  bonds  issued  under 
and  secured  thereby,  shall  be  prior  in  right  to  any  right  or  in- 
terest acquired  by  the  second  party  under  this  indenture. 

ART.  3.   It  is  provided  in  article  third  of  the  mortgage  above 
described,  that  one  million  two  hundred  thousand  dollars  of  the 
bonds  to  be  issued  under  and  secured  thereby  may  be  issued 
only  in  repayment  of  the  actual  amounts  expended 
for  such   additional   locomotives,   cars,    and   other  [j}aseeofucrars 
equipment  purchased  or  constructed  from  time  to  etc- 
time,  as  may,  in  the  opinion  of  the  board  of  directors  of  the 
Louisville  &  Nashville  Railroad  Company,   l>e  needed  for  the 
successful  operation  of  said  railroads,  and  the  actual  amounts 
ex|H?nded  for  such  additional  side  tracks,  depots,  stations,  and 
other  buildings,  elevators,  warehouses,  shops,   machinery,  and 
tools,  and  other  additions,  betterments,  improvements,  and  ex- 
penditures to  or  upon  said  railroads  as  from  time  to  time  may 
be  authorized  by  said  board. 

It  is  agreed  between  the  parties  hereto  that  the  first  party, 
from  time  to  time,  will  furnish  the  necessary  money  for  the 
purchase  or  construction  of  such  additional  locomotives,  cars, 
and  other  equipment  as  the  parties  hereto  may  agree  u|x>n  as 
necessary  for  the  successful  operation  of  the  properties  hereby 


480  LEASES    RELATING    TO    MEMPHIS    BRANCH 

demised,  and  for  the  construction  or  acquisition  of  such  addi- 
tional side  tracks,  depots,  stations,  and  other  buildings,  eleva- 
tors, warehouses,  shops,  machinery,  and«  tools,  and  for  other 
additions,  betterments,  improvements,  and  expenditures  to  or 
upon  the  properties  hereby  demised,  as  may  be  agreed  upon 
by  the  parties  hereto,  and  the  second  party  will  devote  the 
money  so  furnished  exclusively  to  the  purposes  for  which  it 
was  furnished,  and  will  supply  the  first  party  with  satisfactory 
evidence  that  the  same  has  been  so  used,  in  order  that  the  first 
party  may,  from  time  to  time,  as  money  shall  be  so  furnished 
to  and  expended  by  the  second  party,  obtain  therefor,  by  giv- 
ing the  necessary  certificates  and  taking  the  necessary  steps, 
bonds  secured  by  said  mortgage,  as  is  provided  in  article  third 
of  said  mortgage.  If  the  parties  hereto  cannot  agree,  at  any 
time,  that  money  should  be  furnished  under  this  article  of  this 
lease,  or  disagree  as  to  the  amount  to  be  furnished,  or  as  to  the 
particular  purposes  for  which  it  is  to  be  or  ought  to  be  fur- 
nished, any  such  disagreement  shall  be  submitted  to  and  de- 
Arbitration  cided  by  arbitration,  as  follows:  Each  of  the  par- 
provided  for.  ties  hereto  shall  choose  an  arbitrator,  and  the  two 
arbitrators  so  chosen  shall  choose  an  umpire;  and  thereupon 
the  arbitrators  and  umpire  shall  hear  and  consider  the  subject 
of  disagreement,  and  shall  render  their  award  in  writing,  which 
shall  be  final  and  binding  upon  the  parties  hereto. 

It  is  further  agreed  that  the  first  party  shall  not  be  bound  to 
furnish  any  money,  under  this  article  of  this  lease,  for  any  pur- 
Conditionof  pose  unless  it  will  be  entitled  to  obtain  therefor 
vances.  bonds  under  article  third  of  said  mortgage,  nor 

after  the  full  amount  of  bonds  authorized  to  be  issued  by  said 
article  third  of  said  mortgage  shall  have  been  issued  thereunder. 

ART.  4.  It  is  further  agreed  that  all  additional  locomotives, 
cars,  and  other  equipment  purchased  or  constructed  from  time 
to  time  under  article  third  of  this  lease,  and  all  such  additional 
side  tracks,  depots,  stations,  and  other  buildings,  elevators, 
warehouses,  shops,  machinery,  and  tools,  and  other  additions, 
betterments,  improvements,  and  expenditures  to  or  upon  the 
demised  properties,  made  from  time  to  time  under  article  third 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         481 

of  this  lease,  shall  immediately  become  a  part  of  the  demised 
properties,  and  the  second  party  shall  pay,  as  AW|ttolU| 
additional  rent  on  that  account,  amounts  equal  to  rent>  when> 
five  per  cent,  per  annum  on  the  amounts  of  money  furnished 
the  second  party  from  time  to  time  for  the  purchase  or  con- 
struction or  making  thereof  under  the  third  article  of  this  lease, 
from  the  respective  dates  of  the  furnishing  of  such  amounts 
until  the  termination  of  this  lease.  The  first  installment  of 
such  additional  rent  on  account  of  any  amount  furnished  under 
article  third  hereof  is  to  be  paid  on  the  1st  day  of  March  or  on 
the  1st  day  of  September,  whichever  may  first  succeed  the 
date  such  amount  was  furnished,  and  thereafter  such  rent  is  to 
be  paid  in  two  equal  semiannual  installments  on  the  1st  day 
of  March  and  on  the  1st  day  of  September  of  each  year.  All 
such  rent  is  to  be  paid  at  the  first  party's  office  in  New  York 
city. 

ART.  5.  Tne  second  party  agrees  to  pay  all  taxes  and  assess- 
ments of  every  kind  that  may  in  anywise  be  levied  or  assessed 
upon  or  against  or  on  account  of  the  railroads,  other  proper- 
ties, premises,  equipment,  franchises,  and  rights  covered  by 
this  lease,  or  any  of  them,  or  any  part  of  any  or  all  of  them, 

and  agrees  to  preserve  each  and  every  part  thereof  Taxes,  etc.. 

,  ,      „    ..  to  be  paid 

free  and  clear  from  any  and  all  hens  and  charges  by  lessee. 

whatsoever  by  reason  of  any  and  all  taxes  and  assessments; 
and  the  second  party  hereby  assumes  and  agrees  to  satisfy  and 
discharge  all  other  duties,  obligations,  and  liabilities  of  every 
nature  and  kind,  and  to  preserve  all  and  every  part  of  the 
demised  properties  free  and  clear  from  any  and  all  liens  and 
charges  of  every  nature  which  may  or  might  at  any  time  attach 
thereto  or  to  any  part  thereof,  by  judgment  of  court  or  in  any 
other  manner  whatever,  except  the  lien  of  the  mortgage  here- 
inbefore referred  to.  And  the  second  party  agrees  to  indem- 
nify the  first  party  against  and  hold  it  harmless  from  any  and 
every  claim,  liability,  loss  or  damage,  in  any  way  arising  from 
or  connected  with  the  operation,  use,  or  enjoyment  by  the 
second  party  at  any  and  all  times  during  the  term  of  this  lease 
of  the  demised  properties  or  any  part  thereof. 

31 


482  LEASES    RELATING    TO    MEMPHIS    BRANCH 

ART.  6.  The  second  party  agrees,  at  its  own  risk,  cost,  and 
expense,  at  all  times  during  the  continuance  of  this  lease,  to 
Road  to  be  keep,  preserve,  and  maintain  the  railroads,  hereby 
eood  order.  demised,  in  good  order,  and  will  in  like  manner  at 
all  times  during  the  continuance  of  this  lease  keep,  maintain, 
and  preserve  all  of  the  demised  railroads,  other  properties, 
premises,  and  equipment  now  in  existence,  and  all  betterments, 
additions,  and  equipment  that  may  hereafter  come  into  exist- 
ence and  be  subject  hereto,  in  as  good  repair  as  the  same  now 
are,  or  as  the  same  may  be  when  they  come  into  existence  and 
become  subject  hereto.  And  the  second  party  agrees  at  all 
times  faithfully  to  perform  toward  the  public  all  obligations 
due  to  it  from  the  first  party  on  account  of  or  in  respect  to  the 
demised  properties. 

ART.  7.  This  lease  is  the  formal  and  permanent  lease  referred 
to  and  contemplated  in  the  temporary  lease  from  the  first  party 
to  the  second  party,  dated  the  14th  day  of  December,  1895; 
and  said  temporary  lease,  in  the  particulars  wherein  it  is  at 
variance  with  this  lease,  is  incorrect  and  incomplete;  and  the 
said  temporary  lease  is  hereby  terminated,  and  the  second 
party  hereby  releases  the  first  party  from  any  and 
temporary61"  a^  c^amis  ^  might  assert,  or  rights  it  might  claim, 
lease.  under  said  temporary  lease  of  December  14,  1895, 

except  for  improvements  which  have  been  made  by  the  party 
of  the  second  part. 

ART.  8.  All  the  covenants,  agreements,  undertakings,  and 
promises  which  the  second  party  makes  or  assumes  in  this 
lease  shall  be  binding  on  the  successors  and  assigns  of  the 
second  party. 

In  witness  whereof,  the  parties  hereto  have  hereunto  sub- 
scribed their  names  and  affixed  their  corporate  seals  this  date 
first  above  written,  in  duplicate  originals. 

LOUISVILLE  &  NASHVILLE  RAILROAD  COMPANY, 

[SEAL.]  By  M.  H.  SMITH,  President. 

Attest:  J.  H.  ELLIS,  Secretary. 

NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 

[SEAL.]  By  J.  W.  THOMAS,  President. 

Attest:  J.  H.  AMBROSE,  Secretary. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         483 

1.  The  above  lease  was  authorized  by  board  of  directors  of  the  Nash- 
ville, Chattanoogu  &  St.  Louis  Railway,  to  be  executed  at  their  meeting1 
September  9,  1896,  by  vote  of  8  to  1.  [See  minute  book  6,  p.  119-127  of 
Nashville,  Chattanoogu  &  St.  Louis  Railway  directors.]  The  lease  was 
thereupon  signed  by  both  parties. 

2.  For  discussion  of  suit  of  J.  S.  Rogers,  to  set  aside  this  lease,  see 
preceding  chapter. 

J.  W.  PHILLIPS         } 

TO  V  Deed  to  Tennessee  Midland  Railroad. 

L.  &  N.  R.  R.  Co.       ) 

This  indenture,  made  and  entered  into  by  and  between  J.  W. 
Phillips,  party  of  the  first  part,  and  the  Louisville  &  Nashville 
Railroad  Company,  a  corporation  organized  and  existing  under 
the  laws  of  the  State  of  Kentucky,  party  of  the  second  part, 

Witnesseth,  That,  in  consideration  of  the  sum  of  one  million 
four  hundred  and  ninety-one  thousand  eight  hundred  and 
sixty-four  dollars  ($1,491,864),  being  at  the  rate 
of  eleven  thousand  dollars  ($11,000)  per  mile  of 
the  line  of  railroad  formerly  of  the  Tennessee  Midland  Railway 
Company,  cash  in  hand  paid  by  the  party  of  the  second  part, 
the  receipt  whereof  is  hereby  acknowledged,  the  party  of  the 
first  part  does  hereby  grant,  bargain,  sell,  assign,  transfer,  and 
convey  unto  the  said  party  of  the  second  part,  its  successors 
and  assigns,  all  and  singular,  the  railroad  and  property  form- 
erly of  the  Tennessee  Midland  Railway  Company,  and  described 
as  follows: 

Extending  from  within  the  city  of  Memphis,  in  the  State  of 
Tennessee,  and  running  thence  in  an  easterly  direction  through 
the  counties  of  Shelby,  Fayette,  Hardeman,  Madison,  Hender- 
son, and  Decatur,  to  Perryville,  on  the  west  bank  Descrlptfc)ll 
of  the  Tennessee  river,  in  the  said  last  named  °f  »">»«*>• 
county;  also,  all  the  lands,  tenements,  and  hereditaments  ac- 
quired or  used  for  the  purposes  of  the  railroad  aforesaid, 
including  all  rights  of  way,  roadbed,  superstructures,  and 
tracks  thereon,  all  stations,  stationhouses,  depots,  and  all 
grounds  used  in  connection  therewith;  all  rails,  railways, 
tracks,  sidings,  switches,  bridges,  fences,  turntables,  water- 
tanks,  viaducts,  culverts,  main,  passenger,  and  other  depots, 


484:  LEASES    RELATING    TO    MEMPHIS    BRANCH 

freighthouses,  machine  shops,  docks,  wharves,  telegraph  lines, 
and  all  other  buildings,  structures,  and  fixtures,  whatso- 
ever, acquired  for  the  use  of  said  railway,  or  the  business 
thereof,  or  for  the  construction,  maintenance,  or  operation 
thereof;  also,  all  the  locomotives,  tenders,  cars,  equiqments, 
and  other  rollingstock,  machinery,  tools,  weighing  scales, 
wood,  fuel,  oil,  and  materials  whatsoever,  together  with 
all  the  equipments  and  appurtenances  thereunto  belong- 
ing; also  all  the  corporate  rights,  privileges,  franchises,  ill- 
Franchises  eluding  the  franchise  to  be  a  corporation,  and  also 
etc.,  pass.  aji  other  property  of  every  character  and  descrip- 
tion, real,  personal  or  mixed,  and  wheresoever  situate,  for- 
merly of  said  railway  company,  except  its  books  of  account, 
and  choses  in  action,  and  money  on  hand,  and  also  except 
certain  town  lots  donated  to  said  railway  company  at  or  near 
the  town  of  Parsons;  including  all  the  property  of  said  rail- 
way company,  which  was  directed  to  be  sold  by  the  final  de- 
cree of  foreclosure  and,  sale  entered  on  the  9th  day  of  July, 
1895,  by  the  circuit  court  of  the  United  States,  for  the  western 
division  of  the  western  district  of  Tennessee,  at  Memphis,  in 
the  case  of  St.  Louis  Trust  Company,  complainant,  against  the 
Tennessee  Midland  Railway  Company,  defendant,  and  which 
was  sold  under  said  decree  by  J.  H.  Watson  and  J.  B.  Clough, 
special  masters  appointed  by  said  decree  to  the  party  of  the 
first  part  hereto,  on  the  17th  day  of  October,  1895,  which  said 
sale  was  duly  confirmed  by  said  court,  by  orders  entered  in 
said  cause,  bearing  dates  respectively,  the  28th  day  of  October, 
1895,  and  the  29th  day  of  November,  1895,  except  the  books 
of  account,  choses  in  action  and  money  on  hand  hereinbefore 
excepted;  and  being  the  same  property  heretofore  conveyed, 
by  virtue  of  said  sale  and  the  confirmation  thereof,  to  the  party 
of  the  first  part  hereto,  by  said  J.  H.  Watson  and  J.  B. 
Clough,  special  masters,  by  their  deed  bearing  date  the  13th 
day  of  December,  1895,  and  also  conveyed  to  the  party  of  the 
first  part  hereto,  by  the  Tennessee  Midland  Railway  Company, 
by  its  quitclaim  deed,  bearing  date  the  13th  day  of  December, 
1895,  and  by  William  L.  Huse  and  John  Overton  Jr.,  re- 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.         485 

ceivers  of  said  railway  and  property  by  their  deed,  bearing 
date  the  14th  day  of  December,  1895;  including  herein  and  in- 
tending to  include,  all  the  property  acquired  as  aforesaid,  in- 
cluding all  the  property  acquired  in  behalf  of  said  railway 
company  by  William  L.  Huse  and  John  Overton,  Jr.,  as  re- 
ceivers thereof;  except  the  books  of  account,  choses  in  action, 
and  cash  above  referred  to,  and  certain  town  lots  donated  to 
said  railway  at  or  near  the  town  of  Parsons. 

To  have  and  to  hold  unto  the  said  Louisville  &  Nashville 
Railroad  Company,  'ami  to  its  successors  and  assigns  in  fee 
simple,  absolute,  and  forever,  together  with  all  the  rights, 
privileges,  and  franchises  appertaining  thereto,  as  fully  and 
completely  as  the  said  J.  W.  Phillips,  party  of  the  first  part, 
holds  or  enjoys  the  same,  or  is  entitled  to  hold  and  enjoy  the 
same,  by  virtue  of  the  conveyance  made  to  him  as  aforesaid  by 
said  J.  H.  Watson  and  J.  B.  Clough,  special  masters,  and  by 
the  said  Tennessee  Midland  Railway  Company,  and  by  William 
L.  Huse  and  John  Overton,  Jr.,  receivers,  but  subject  to  all 
the  limitations  and  restrictions  imposed  on  the  said  railway  and 
property  herein  conveyed  and  on  the  purchaser  thereof,  by 
virtue  of  the  final  decree  of  foreclosure  and  sale  entered  by  the 
said  United  States  circuit  court  for  the  western  division  of  the 
western  district  of  Tennessee,  in  the  case  of  St.  Louis  Trust 
Company,  complainant,  against  the  Tennessee  Midland  Rail- 
way Company,  defendant,  above  referred  to.  And  reference 
is  hereby  made  to  the  said  final  decree  of  foreclosure  and  sale, 
and  to  the  orders  confirming  said  sale,  and  to  said  deed  of  J. 
H.  Watson  and  J.  B.  Clough,  special  masters,  and  of  the  Ten- 
nessee Midland  Railway  Company,  and  of  William  Huse  and 
John  Overton,  Jr.,  receivers,  executed  and  delivered  to  the 
party  of  the  first  part  for  further  and  full  particulars,  both  in 
respect  to  the  property  herein  conveyed  and  to  the  conditions, 
limitations,  and  restrictions  thereon,  and  on  the  purchaser 
thereof  imposed. 

And  the  said  party  of  the  first  part  hereby  covenants  with 
the  party  of  the  second  part  that  he  will  warrant  and  forever 
defend  the  title  to  all  and  singular  the  property  TJtle 
hereinbefore  conveyed  to  the  party  of  the  second  w*rrtntcd> 


486  LEASES    RELATING    TO    MEMPHIS    BRANCH 

part,  and  its  successors  and  assigns,  against  the  lawful  claims 
of  all  persons  claiming  or  to  claim  the  same,  or  any  part 
thereof,  by,  through  or  under  him,  but  no  further  or  other- 
wise. 

In  witness  whereof,  the  party  of  the  first  part  has  hereunto 
set  his  hand  and  seal,  this  the  fourteenth  day  of  December, 

1895.  [SEAL.]         J.  W.  PHILLIPS. 

STATE  OF  MISSOURI,  j 

[SB. 
CITY  OF  ST.  Louis.    ) 

Before  me,  Charles  H.  Anderson,  a  notary  public  within  and 
for  the  city  and  state  aforesaid,  personally  appeared  J.  W. 
Phillips,  the  within  named  bargainer,  with  whom  I  am  person- 
ally acquainted,  and  who  acknowledged  that  he  executed  the 
within  deed  for  the  purposes  therein  contained. 

My  term  of  office  expires  on  the  fourteenth  day  of  Novem- 
ber, 1897. 

Witness  my  hand  and  seal  of  office,  this  the  fourteenth  day 
of  December,  1895. 

CHARLES  H.  ANDERSON, 
Notary  Public,   City  of  St,  Louis,  Mo. 

Deed,  where  registered. — The  above  deed  was  registered  August  4, 

1896,  in  Shelby  county,  in  book  250,   p.   220;  in  Fayette  county,  August 
15,  1896,  book  21,  p.  213;  in  Hardeman  county,  August  7,   1896,  in  book 
"K  K,"  pp.   108-111;  in  Madison  county,  August  7,   1896,  in  book  54,  p. 
479;  in  Henderson  county,  August  17,  1896,  in  book  15,  pp.  103-107;  in 
Dcature  county,  August  8,  1896,  in  book  13,  p.  261. 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         487 


CHAPTER  XL. 

PADUCAH,  TENNESSEE  &  ALABAMA  RAILROAD. 
[PADUCAH  BRANCH.] 

(Chartered  in  Tennessee  under  general  acts  1875,  ch.  142,  and  in  Ken- 
tucky by  special  act.     See  charters,  further  on  in  this  chapter.) 

How  acquired  by  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— The  Paducah,  Tennessee  &  Alabama  Railroad  Company, 
in  order  to  raise  funds  to  construct  its  road,  issued  and  disposed 
of  a  series  of  bonds,  secured  by  mortgage  on  its  railroad,  prop- 
erties, franchises,  etc.  Default  being  made  in  the  payment  of 
the  coupons,  the  St.  Louis  Trust  Company,  as  trustee,  on 
October  28,  1893,  filed  a  bill  in  the  circuit  court  of  the  United 
States  [in  equity]  for  the  district  of  Kentucky,  at  Paducah, 
and  subsequently,  on  July  1,  1895,  a  supplemental  bill,  asking 
a  foreclosure  of  said  mortgage.  The  said  trustee  also,  on  Oc- 
tol>er  28,  1893,  tiled  a  bill,  as  ancillary  to  the  other,  in  the 
circuit  court  of  the  United  States  for  the  eastern  division  of 
the  western  district  of  Tennessee,  at  Jackson,  and  on  July  1, 
1895,  a  supplemental  bill,  for  the  same  purpose. 

A  decree  of  foreclosure  was  rendered  July  10,  1895,  by  said 
United  States  circuit  court  for  the  district  of  Kentucky,  at 
Paducah,  and  by  the  United  States  circuit  court  for  the  eastern 
division  of  the  western  district  of  Tennessee,  at  Jackson,  on 
July  11,  1895,  and  A.  B.  Lamb  and  J.  R.  Puryear,  as  special 
masters,  were  ordered  to  sell  said  railroad,  property,  franchises, 
etc.,  in  default  of  the  payment  of  the  amounts  in  said  decree 
ordered  to  be  paid.  The  amounts  not  being  paid,  the  special 
masters,  on  October  18,  1895,  in  conformity  to  the  terms  of 
the  decree,  sold  said  Paducah,  Tennessee  &  Alabama  Railroad, 
pro|>erties,  franchises,  etc.,  to  the  highest  bidder  for  cash,  at 
the  courthouse  door  in  Paducah,  Kentucky.  The  purchaser 


488  LEASES    RELATING    TO    MEMPHIS    BRANCH 

was  J.  W.  Phillips,  who  secured  the  property  for  the  sum  of 
$1,000,000.  On  November  29,  1895,  a  decree  was  entered 
confirming  the  sale  and  directing  the  special  masters  to  execute 
a  deed  therefor.  In  December,  1895,  the  special  masters  exe- 
cuted a  deed  to  J.  W.  Phillips  of  said  railroad,  franchises, 
properties,  etc.,  in  conformity  with  the  terms  of  the  decree. 
Said  deed  was  properly  acknowledged,  and  registered  in  the 
register's  office  of  Carroll  county,  Tenn.,  December  8,  1895, 
in  book  14,  pp.  262-68;  in  Henderson  county,  Tenn.,  Decem- 
ber 26,  1895,  in  book  14,  pp.  344-49;  in  Henry  county,  Tenn., 
December  20,  1895,  in  book  4,  pp.  232-37;  in  Galloway 
county,  Ky. ,  December  23,  1895,  in  book  7,  p.  341;  in  Mar- 
shall county,  Ky.,  December  21,  1895,  in  book  20,  pp.  153- 
59;  in  McCracken  county,  Ky.,  December  23,  1895,  in  book 
50,  p.  542;  in  Graves  county,  Ky.,  December  23,  1895,  in 
book  15,  pp.  196-203. 

The  receivers  of  the  company,  Wm.  L.  Huse  and  John 
Overton,  Jr.,  also  executed  a  deed  to  him,  conveying  all  their 
right,  title,  arid  interest  in  and  to  the  property  to  him.  This 
deed  was  properly  acknowledged  and  registered  in  the  register's 
office  of  Henry  county,  Tennessee,  December  20,  1895,  in 
book  4,  pp.  241-45;  in  Henderson  County,  Tennessee,  Decem- 
ber 26,  1895,  in  book  14,  p.  350;  in  Carroll  county,  Tennes- 
see, December  23,  1895,  in  book  14,  pp.  273-77;  in  Calloway 
county,  Kentucky,  December  23,  1895,  in  book  7,  p.  358;  in 
Marshall  county,  Kentucky,  December  21,  1895,  in  book  20, 
pp.  164-69;  in  Graves  county,  Kentucky,  December  23,  1895, 
in  book  15,  pp.  210-15;  in  McCracken  county,  Kentucky, 
December  23,  1895,  in  book  50,  p.  553. 

The  Paducah,  Tennessee  and  Alabama  Railroad  Company, 
itself  also  executed  a  deed  to  him,  conveying  all  its  right,  title, 
and  interest  in  and  to  the  railroad  properties,  franchises,  etc., 
to  him.  This  deed  was  properly  acknowledged  and  registered 
in  the  register's  office  of  McCracken  county,  Kentucky,  Decem- 
ber 23,  1895,  in  book  50,  p.  548;  in  Graves  county,  Kentucky, 
December  23,  1895,  in  book  15,  pp.  204-9;  in  Marshall  county, 
Kentucky,  December  21,  1895,  in  book  20,  pp.  160-4;  in 


NASHVILLE,    CHATTANOOGA    4    ST.    LOUIS    RAILWAY.         489 

Galloway  county,  Kentucky,  December  23,  1895,  in  book  7, 
p.  351;  in  Henry  county  Tennessee,  December  20,  1895,  in 
book  4,  pp.  237-41;  in  Henderson  county,  Tennessee,  Decem- 
ber 26,  1895,  in  book  14,  pp.  357-61;  in  Carroll  county,  Ten- 
nessee. December  23,  1895,  in  book  14,  pp.  268-72. 

On  December  14,  1895,  J.  W.  Phillips  sold  said  road, 
property,  franchises,  etc.,  to  the  Louisville  &  Nashville  Rail- 
road Company,  and  executed  a  deed  therefor.  Said  deed  is 
fully  set  out  in  the  next  chapter,  and  shows  the  places  where  it 
is  registered. 

On  December  14,  1895,  the  Louisville  &  Nashville  Railroad 
Company  executed  a  temporary  lease  of  this  road,  together 
with  the  Tennessee  Midland  Railroad,  which  latter  road  it  had 
also  purchased,  to  the  Nashville,  Chattanooga  &  St.  Louis 
Railway.  This  lease  is  fully  set  out  in  chapter  thirty-nine 
herein,  and  shows  the  places  where  registered. 

1.  As  the  lease  of  the  Tennessee  Midland  Railroad  and  the  Paducah, 
Tennessee  &  Alabama  Railroad  were  executed  in  one  instrument,  and 
as  the  lease  has  heretofore  been  inserted  in  this  compilation  in  eh.  39, 
on  the  "Tennessee  Midland  Railroad."  it  will  be  here  omitted. 

2.  For  deed  of  Louisville  «fe  Nashville  Railroad  Company  to  Tennessee 
Midland  Railroad,  see  ch.  39  herein. 

On  September  9,  1896,  a  permanent  or  formal  lease  of  the 
two  roads  was  drawn  up  and  signed  by  the  Louisville  &  Nash- 
ville Railroad  Company  and  the  Nashville,  Chattanooga  &  St, 
Louis  Railway.  The  lease  was  to  be  operative  for  a  period  of 
ninety-nine  years  from  that  date,  at  a  rental  of  $1 54, 650  per 
annum,  payable  semiannually.  This  was  five  per  cent,  on  the 
amount  paid  by  the  Louisville  &  Nashville  Railroad  Company 
($3,093,000)  for  the  two  roads.  The  lease  further  provided 
that,  should  the  Louisville  &  Nashville  Railroad  Company  be 
called  upon  to  expend  additional  sums  for  improvements,  etc., 
on  the  two  roads,  an  additional  rental  should  be  paid  of 
five  per  cent,  on  the  amount  or  amounts  so  expended.  This 
lease  is  also  fully  set  out  in  chapter  39  herein. 

(1)  Legaility  of  lease;  Rogers'  suit  — For  a  full  discussion  of  this,  see 
"note,"  with  similar  heading,  on  page  457  herein,  in  chapter  38.  con- 
cerning the  Tennessee  Midland  Railroad.  The  two  roads  were  leased  to 


490  LEASES    RELATING    TO    MEMPHIS    BRANCH 

the  Nashville,  Chattanooga  &  St.  Louis  Railway  in  the  same  instrument, 
and  as  the  validity  of  the  lease  has  been  discussed  in  the  chapter  re- 
ferred to,  it  is  here  omitted  for  economy  of  space. 

Distance  road  built  when  leased.— When  the  Nashville, 

Chattanooga  &  St.  Louis  Railway  leased  this  road  it  had  been 
completed  and  was  in  operation  from  Paducah,  Kentucky,  to 
Lexington,  Tenneesee,  a  distance  of  about  118.18  miles,  at 
which  point  it  connected  with  the  Tennessee  Midland  Railroad, 
thus  forming  a  continuous  line,  with  the  latter  road,  to  Mem- 
phis, Tennessee. 

The  distance  the  Tennessee  Midland  Railroad  had  been  built  when  it 
was  leased  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway  was  from 
Memphis  to  Perry  ville,  a  distance  of  about  135.56  miles. 

Company,  how  and  where  chartered;  route.— The  Paducah, 

Tennessee  &  Alabama  Railroad  Company  was  formed  by  the 
consolidation  of  the  Paducah  &  Tennessee  Railroad  Company, 
a  corporation  of  Kentuck}r;  the  Paducah  &  Tennessee  Railway 
Company,  a  corporation  of  Tennessee,  and  the  Paducah  & 
Tennessee  Railroad  Company,  a  corporation  of  Tennessee. 

The  Paducah  t£  Tennessee  Railroad  Company,  of  Kentucky, 
was  chartered  by  Acts  Kentucky  1853-4,  ch.  681,  as  amended 
by  Acts  Kentucky  1873,  ch.  315,  p.  394,  approved  March  5, 
1873;  Acts  1888,  ch.  300,  approved  February  25,  1888,  and 
Acts  1892,  ch.  85,  p.  211,  which  became  a  law  August  6, 
1892,  the  latter  act  ratifying  the  consolidation. 

The  Paducah  &  Tennessee  Railway  Company,  of  Tennessee, 
and  the  Paducah  &  Tennessee  Railroad  Company,  of  Tennessee, 
were  both  chartered  under  the  general  Acts  of  Tennessee  1875, 
ch.  142,  sec.  6. 

The  Paducah  &  Tennessee  Railroad  Company^  of  Kentucky, 
was  authorized  by  its  charter  and  amendments  to  build  a  road 
from  the  terminus  of  any  railroad  bridge  or  transfer  that 
might  be  built  or  established  across  the  Ohio  river,  in  the 
county  of  McCracken,  to  any  station  or  depot  in  the  city  of 
Paducah,  or  junction  with  any  railroad  company  in  said  city, 
and  to  extend  its  line  of  road  by  single,  double,  or  treble 
tracks,  in  a  southeastwardly  direction,  through  the  counties  of 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         491 

McCracken,  Marshall  and  Calloway,  to  the  line  of  the  State  of 
Tennessee,  in  Calloway  county,  as  the  company  might  select. 

The  Paducah  &  Tennessee  Railway  Company,  of  Tennesseee, 
was  authorized  by  its  charter  to  construct  a  railroad  from  a 
point  upon  the  north  line  of  the  State  of  Tennessee,  in  Henry 
county,  so  as  to  connect  with  the  Paducah  &  Tennessee  Rail- 
road, of  Kentucky,  and  running  thence  in  a  southerly  direction 
to  a  point  within  one-half  a  mile  of  the  courthouse  in  Paris, 
Tenn. 

The  Paducah  &  Tennessee  Railroad  Company,  of  Tennessee, 
was  authorized  by  its  charter  to  construct  a  road  from  a  point 
at  or  near  the  city  of  Paris,  Tenn.,  from  a  connection  with  the 
tracks  of  the  Paducah  &  Tennessee  Railway  Company,  of  Ten- 
nessee, thence  in  a  southerly  direction  across  said  state,  upon 
the  most  possible  and  practical  line,  to  a  point  on  the  south 
line  of  said  state  in  the  county  of  Wayne.  All  of  these  char- 
ters are  fully  set  out  further  on  in  this  chapter. 

On  July  1,  1889,  the  stockholders  of  the  above  companies 
met  at  their  respective  offices  and  unanimously  voted  to  con- 
solidate their  roads.  On  July  15,  1889,  articles  of  consolida- 
tion and  agreements  were  drawn  up  and  signed  by  the  re- 
spective companies,  and  the  new  company  so  organized  was 
given  the  name  of  the  Paducah,  Tennessee  &  Alabama  Railroad 
Company.  The  articles  of  consolidation  were  registered  in  the 
secretary  of  states'  office  of  Kentucky  and  Tennessee,  and  may 
be  found  further  on  in  this  chapter. 

(1)  Legality  of   consolidation. — The  consolidation  was  legal  under 
Acts  Kj..  as  set  out  in  code  1894,  \  770.     See  also  §  555.     It  was  legal  un- 
der Acts  Tenn.,  1871,  ch.  69;  1877,  eh.  72,  sec.  2;  1867-08,  ch.  72,  sec,  1; 
1887,  ch.   188,  as  set  out  in  Shannon's  Code  of  Tennessee  as  $  1523,  el 
*«•'/•     The  consolidation  was  made  in  conformity  with  these  acts.     The 
Paducah  &  Tennessee  Railroad,  of  Kentucky,  had  power  to  consolidate 
under  Acts  Ky.,  1888,  ch.  300,  sec,  3.     See  act  in  next  chapter. 

(2)  Consolidation  approved. — By  Acts  Ky.,  18«J2,  ch.  85,  p.  211,  which 
became  a  law  August  6,   1892,  the  consolidation  of  the  above  companies 
was  approved  and  confirmed.     The  act  is  set  out  in  next  chapter  herein. 

Width  Of  right  Of  way.— [fn  Tennessee].  The  Paducah, 
Tennessee  &  Alabama  Railroad  Company  was  formed  by 
the  consolidation  of  the  Paducah  &  Tennessee  Railway 


492  LEASES    RELATING    TO    MEMPHIS    BRANCH 

Company,  of  Tennessee,  the  Paducah  &  Tennessee  Rail- 
road Company,  of  Tennessee,  and  the  Paducah  &  Ten- 
nessee Railroad  Company,  of  Kentucky,  as  heretofore 
explained.  By  virtue  of  the  consolidation  it  fell  heir  to  all 
the  rights,  privileges,  and  franchises  of  those  respective 
companies.  This  being  so,  the  width  of  its  right  of  way 
will  now  have  to  be  determined  by  the  provisions  of  the 
original  charters  of  those  companies.  As  the  Paducah  &  Ten- 
nessee Railway  Company,  of  Tennessee,  and  the  Paducah  &  Ten- 
nessee Railroad  Company,  of  Tennessee,  were  both  chartered 
under  the  general  acts  of  Tennessee,  1875,  chapter  142,  sec.  6, 
the  width  of  their  right  of  way,  from  Lexington,  Tenn.,  to 
the  Kentucky  state  line,  would  have  to  be  determined  in  the 
same  way.  In  their  charters  there  are  no  clauses  granting 
specified  numbers  of  feet  as  a  right  of  way,  in  the  absence  of 
any  contract  with  the  original  landowners,  as  was  done  in  the 
charter  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway. 
Section  9  of  their  charter,  however,  provided  that  the  said 
company  should  have  the  right  to  appropriate,  as  an  easement, 
a  right  of  way  not  exceeding  two  hundred  feet — one  hundred 
on  each  side  of  the  center  line  of  said  roads — over  the  lands  of 
any  person  through  which  the  line  of  track  may  be  located. 
Under  this  section  the  two  companies,  or  their  successors,  the 
Paducah,  Tennessee  &  Alabama  Railroad  Company,  could  have 
originally  condemned  any  number  of  feet,  up  to  and  including 
two  hundred,  for  a  right  of  way.  Whatever  number  of  feet 
was  originally  condemned,  however,  would  now  be  binding 
upon  the  Nashville,  Chattanooga  &  St.  Louis  Railway  and  its 
lessor,  the  Louisville  &  Nashville  Railroad  Company,  unless 
additional  proceedings  are  instituted,  as  will  be  hereafter  ex- 
plained. Should  no  purchase  or  condemnation  have  been  had 
at  all,  then  the  entry  and  construction  of  the  road  would  be 
regarded  as  an  appropriation  of  so  much  of  the  land  as  the  law 
authorized,  which  is  two  hundred  feet  in  Tennessee,  and  the 
Nashville,  Chattanooga  &  St.  Louis  Railway,  as  the  lawful 
lessee,  and  the  Louisville  &  Nashville  Railroad  Company,  as 
the  lawful  purchaser  thereof,  would  be  entitled  to  that  number. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         493 

3  Lea  (Tenn.),  478.  If  a  jmrcJuue  or  gift  from  the  landowner 
was  made,  then,  of  course,  the  deed  would  control  if  mention 
is  made  of  the  width  therein.  If  no  width,  is  specified,  then 
the  law  would  doubtless  presume  the  statutory  width  of  two 
hundred  feet  was  intended.  !>8  Ala.,  647.  See  also  3  Lea 
(Tenn.),  478. 

[In  Kentucky.}  The  road  from  the  Tennessee  state  line  to 
Paducah,  Kentucky,  was  built  under  the  original  charter  of 
the  Paducah  &  Tennessee  Railroad  Company,  of  Kentucky,  as 
before  explained,  and  its  charter  must  control  over  that  part 
of  the  road.  By  referring  to  its  charter,  which  is  fully  set  out 
further  on  in  this  chapter,  it  will  be  found  that  there  is  no 
clause  in  it  granting  specih'ed  numbers  of  feet  as  a  right  of 
way,  in  the  absence  of  any  contract  with  the  original  land- 
owner, as  was  done  in  the  charter  of  the  Nashville,  Chattanooga 
&  St.  Louis  Railway.  Section  1  of  its  charter,  however,  pro- 
vided that  "the  company  is  hereby  authorized  to  lay  out  the 
road  not  exceeding  one  hundred  feet  wide  throughout  the  whole 
length,  and  for  the  purpose  of  depots,  cuttings,  and  embank- 
ments, and  for  the  purpose  of  necessary  turnouts,  and  for 
obtaining  stone  and  gravel,  may  take  as  much  more  land  as 
may  be  necessary  for  the  construction  and  security  of  said 
road,''  etc.  Under  this  section,  the  Paducah  &  Tennessee 
Railroad  Company,  of  Kentucky,  or  its  successor,  the  Paducah, 
Tennessee  &  Alabama  Railroad  Company,  could  have  originally 
condemned  any  number  of  feet  up  to  and  including  one  hundred 
for  a  right  of  way,  and  as  much  more  for  depots,  etc.,  as 
was  necessary.  Whatever  number  of  feet  was  originally  con- 
demned, however,  would  now  be  binding  upon  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  and  its  lessor,  the  Louisville 
&  Nashville  Railroad  Company.  Should  no  purchase  or  con- 
demnation have  been  had  at  all,  then  the  entry  and  construction 
of  the  road  would  doubtless  be  regarded  as  an  approjwiation  of 
so  much  of  the  land  as  the  charter  authorized,  which  was  one 
hundred  feet  for  a  right  of  way,  and  the  Louisville  &  Nashville 
Railroad  Company  and  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  as  the  lawful  purchaser  and  lessee  thereof,  respect- 


494  LEASES    RELATING    TO    MEMPHIS    BRANCH 

ively,  would  be  entitled  to  that  number.  3  Lea  (Tenn.),  478. 
If  a  purchase  or  gift  from  the  landowner  was  made,  then,  of 
course,  the  deed  would  control,  if  mention  is  made  of  the  width 
therein.  If  no  width  is  specified,  then  the  law  would  doubtless 
presume  the  statutory  or  charter  width  of  one  hundred  feet 
was  intended.  98  Ala.,  647.  See,  also,  3  Lea  (Tenn.),  478. 

For  full  discussion  of  width  of  right  of  way,  together  with  kindred 
subjects,  see  "Eminent  Domain,"  "Right  of  Way,"  herein.    Refer  to  index. 

ORIGINAL,  CHARTER   OF   THE   PADUCAH  AND 

TENNESSEE  RAILROAD   COMPANY     [OF 

KENTUCKY]. 

[Chartered  by  Acts  Kentucky,  1853-4,  ch.  681.] 

SECTION  i.— Incorporation,  name,  general  powers,  route, 
width  of  right  of  way,  land  for  other  purposes.— Be  it  enacted 

by  the  General  Assembly  of  the  Commonwealth  of  Kentucky, 
That  Alfred  Boyd,  L.  S.  Trimble,  L.  M.  Flournoy,  J.  M. 
Bigger,  Win.  Smedley,  A.  Rankin,  D.  Watts,  Wm.  Nolen,  R. 
S.  Ratcliffe,  J.  B.  Husbands,  G.  H.  Morrow,  H.  M.  Mc- 
Carty,  J.  C.  Calhoun,  Samuel  Rice,  John  H.  Terril,  and 
incorpora-  Samuel  Purcel,  of  the  county  of  McCracken;  R.  L. 
tors>  Mayes,  R.  K.  Williams,  Win.  Beadles,  and  Lucien 

Anderson,  of  the  county  of  Graves,  and  State  of  Kentucky; 
John  H.  Dunlap,  C.  D.  Venable,  B.  C.  Brown,  Govy  Cox,  and 
Robert  Caldwell,  of  the  county  of  Henry,  and  State  of  Ten- 
nessee, with  such  other  persons  as  shall  associate  with  them  for 
that  purpose,  are  constituted  a  body  politic  and  corporate,  by 
Name.  the  name  of  the  Paducah  &  Tennessee  Railroad 

Company;  and  by  that  name  to  sue  and  be  sued,  plead  and  be 
impleaded,  in  any  court  of  this  state;  to  make  and  have  a 
General  common  seal,  and  the  same  break,  alter,  and  renew 

Powers.  af.  pleasure.     And  this  company  is  hereby  vested 

with  all  powers,  privileges  and  immunities,  which  are  or  may 
be  necessary  to  carry  into  effect  the  purposes  and  objects  of 
this  act,  hereinafter  set  forth.  And  said  company  or  corpora- 
tion is  hereby  authorized  and  empowered  to  locate,  construct, 
and  finally  complete  a  railroad,  or  way,  with  as  many  sets  of 


NASHVILLE,    CHATTANOOGA    A   8T.    LOUIS    RAILWAY.         495 

tracks  as  they  may  deem  necessary,  from  some  suitable  point 
at  the  town  of  Paducah,  or  from  any  point  on  the  Route. 
New  Orleans  &  Ohio  Railroad,  to  the  south  boundary  of  this 
state,  in  a  direction  to  Paris,  or  other  point  in  Henry  county, 
Tennessee,  on   such  route  as  shall  be  deemed   best  and   most 
expedient:  and  transport,  take,  and  carry  property  and  persons 
upon  said  railroad,  or  way,  by  the  power  and  force  of  steam, 
of  animals,  or  of  any  mechanical  or  other  power,  or  any  com- 
bination of  them,  which  said  company  may  choose  to  apply. 
And  for  the  purpose  of  constructing  said  railroad,  or  way,  the 
said  company  is  hereby  authorized  to  lay  out  the  width  of 
road  not  exceeding  one  hundred  feet  wide,  through  w«y. 
the  whole  length.     And  for  the  purpose  of  depots,  cuttings, 
and  embankments,  and  for  the  purpose  of  necessary  Land  for 
turnouts,  and  for  obtaining  stone  and  gravel,  may  Purposes, 
take  as  much  more  land  as  may  be  necessary  for  the  construc- 
tion and  security  of  said  road,  with  permission  to  make  any 
lawful  contract  with  any  other  railroad  corporation  in  relation 
to  the  business  of  said  company;  and  also  to  make  joint  stock 
with  any  other  railroad  corporation;  Provided,  That  all  damages 
that  may  be  occasioned  to  any  person  or  corporation,  by  tak- 
ing of  any  such  land  or  materials  aforesaid,  for  the  purposes 
aforesaid,    shall  be  paid  for  by  said  company  in  the  manner 
hereinafter  provided. 

1.  Incorporation. — The  above  act,  incorporating  this  company,  was 
re-enacted  by  Acts  Ky.  1873,  ch.  315,  p.  394,  sec.  1,  approved  March  5,  1873. 
See  act  in  next  chapter. 

2.  Incorporators.— Ily  Acts  Ky.  1873,  ch.  315,  p.  394.  sec.  2,  the  incor- 
porators  were  changed  to  J.  M.  Bigger,  John  C.  Noble,   L.  S.  Tribble, 
P.  Palmer,  Campbell  Parker,  J.  H.  Stroud,  John  L.  Irvan,  R.  L.  Ellison, 
and  Howell  Smith.     See  act  itself  in  next  chapter. 

3.  Route. — The  route  of  this  road,  as  authorized  above,  was  amended 
by  Acts  Ky.  1873,  ch.  315,  p.  394,  sec.  3,  approved  March  5,  1873.     See  act 
itself,  in  next  chapter.     The  amendment,  however,  was  subsequently 
repented  by  Acts  1888,  ch.  300,  sec.  5,  approved  February  25,  1888,  which 
act  may,  also,  be  found  in  next  chapter,  and  which  act,  by  section  1 
thereof,  authorized  the  company  to  "build  and  operate  the  railroad  in 
the  city  of  Paducah,  by  and  with  the  consent  of  the  city  council  of  said 
city,  and  county  of  McCracken,  in  the  State  of  Kentucky,  from  the  ter- 
minus of  any  railroad  bridge  or  transfer  that  may  be  built  or  established 
across  the  Ohio  river  in  said  county  of  McCracken,  to  any  station  or 


496  LEASES    RELATING    TO    MEMPHIS    BRANCH 

depot  in  the  city  of  Paducah,  or  junction  with  any  railroad  company  in 
said  city,  and  may  extend  its  line  of  road,  by  single,  double,  or  treble 
tracks,  in  a  southeastwardly  direction,  through  the  counties  of  Mc- 
Cracken,  Marshall,  and  Galloway,  to  the  line  of  the  State  of  Tennessee, 
in  Galloway  county,  as  said  railroad  company  may  select." 

4.  May  hold  and  condemn  land. — By  Acts  Ky.  1888,  ch.  300.  sec.  1, 
approved  February  25,  1888,  the  company  was  authorized  to  establish 
and  construct  such  depots,  sidings,  turntables,  shops,  transfer  landings, 
and  such  other  offices  or  structures  as  may  be  deemed  expedient  by  the 
company,  and  may  purchase,  lease,  or  otherwise  acquire  real  estate  and 
personal   property   for   its   railroad   tracks,    transfer  landings,  depots, 
sidings,  shops,  offices,  and  all  other  purposes  of  said  railroad  company. 
In  the  event  it  cannot  agree  with  the  owner  for  the  purchase  of  any 
land  or   material   for  the  use  or  construction  of  said  railroad,  it  may 
condemn  the  same,  under  the  general  law  of  this  State,  for  its  purposes 
and  uses."     See  act  itself  in  next  chapter. 

5.  Franchise  made  perpetual. — By  Acts  Ky.   1888,  ch.   300,  sec.    1, 
approved  February  25,  1888,  the  franchise  of  the  Paducah  &  Tennessee 
Railroad  Company  was  made  perpetual.     See  act  itself  in  next  chapter. 

6.  Name  changed. — On  July  1,  1889,  the  stockholders  of  this  company, 
together  with  those  of  the  Padueah  &  Tennessee  Railway  Company,  of 
Tennessee,  and  the  Paducah  &  Tennessee  Railroad  Company,  of  Tennes- 
see, met  at  their  respective  offices,  and  unanimously  voted  to  consolidate 
the  three  companies,  under  Acts  Ky.,  as  set  out  in  Code  of  1894,  §770 
[see,  also,  $  555],  and  Acts  Tenn.,  as  set  out  in  Shannon's  Code,  \  1522  et 
seq.     On  July  15,  1889,  articles  of  agreement  were  drawn  up  and  signed 
by  the  respective  companies  for  this  purpose,  and  the  name  of  the  con- 
solidated companies  changed  to  the   '•  Paducah,  Tennessee  &  Alabama 
Railroad   Company."      See   articles   of    agreement    further   on   in   this 
chapter.     Subsequently,  by  Acts  Ky.  1892,  ch.  85,  p.  211,  which  became 
a  law  August  6,  1892,  the  consolidation  was  approved  and  confirmed. 
This  act  may  also  be  found  in  next  chapter.     It  may  be  mentioned  that 
the   Paducah  »fe  Tennessee  Railroad   Company,   of  Kentucky,   had   the 
power  to  consolidate  under  Acts  Ky.  1888,  ch.  300,  sec.  3. 

7.  May  indorse  bonds  of  cities,  counties,  etc.,  when. — By  Acts  Ky. 
1888,  ch.  300,  sec.  4.  the  company  was  authorized  to  indorse  the  bonds  of 
any  county,  city,  town,  civil  or  school  district  issued  in  aid  of  its  con- 
struction.    See  act  itself  in  next  chapter. 

8.  May  consolidate  with  other  roads. — By  same  act,  section  3,  the 
company  was  authorized  to  unite,  cou.^uiidate,  or  make  running  arrange- 
ments with  any  other  railroad  within  or  without  the  state.     See  act 
itself  in  next  chapter. 

SEC.  2.  Capital  stock;  value  of  shares.— That  the  capital 

stock  of  said  company  shall  not  exceed  one  million  five  hundred 
thousand  dollars,  to  be  divided  into  shares  of  fifty  dollars  each, 
which  shall  be  deemed  personal  property,  and  may  be  trans- 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS   RAILWAY.         497 

t'erred  in  such  manner  and  at  such  places  as  the  by-laws  of  said 
company  shall  direct;  Provided,  That  said  company  may  com- 
mence the  construction  of  said  road,  with  all  the  powers  and 
privileges  contained  in  this  act,  whenever  the  sum  subscribed 
shall  exceed  two  hundred  thousand  dollars. 

Capital  increased. — By  acts  Ky.  1888,  ch.  300,  sec.  3,  approved  Feb- 
ruary '25,  1888,  the  capital  stock  was  fixed  at  83,000,000,  with  power  on 
the  part  of  the  directors  to  increase  or  decrease  the  stock  to  the  actual 
amount  expended  in  its  construction  and  equipment. 

SEC.  3.  Books  opened,  where;  capital  stock  not  to  exceed 

What. — That  the  persons  named  in  the  first  section  of  this  act, 
or  a  majority  of  them,  shall  open  books  to  receive  subscrip- 
tions to  the  capital  stock  of  said  company,  at  such  time  and 
places  as  they  or  a  majority  of  them  may  appoint,  and  shall 
give  such  notice  of  the  time  and  place  of  opening  said  books 
as  they  may  deem  reasonable,  and  shall  receive  «aid  subscrip- 
tions under  such  regulations  as  they  may  adopt  for  the  pur- 
pose. And  if  more  than  six  thousand  shares  of  stock  shall  be 
taken  or  subscribed,  they  shall  have  the  power  to  make  the 
shares  as  subscribed  the  capital  stock  of  said  company;  Pro- 
vided, They  shall  not  exceed  thirty  thousand  shares,  and  in 
case  the  subscription  should  exceed  thirty  thousand  shares,,  the 
same  shall  be  reduced  and  apportioned  in  such  manner  as  may 
be  deemed  most  beneficial  to  the  corporation. 

(1)  Capital  increased. — See  note  to  section  2  of  this  charter. 

SEC.  -L  Powers,  number,  quorum;  secretary  and  treasurer, 

hOW  Chosen. — That  the  immediate  government  and  direction  of 
the  affairs  of  said  company  shall  be  vested  in  a  board  of  di- 
rectors, to  consist  of  twelve  persons,  who  shall  be  shareholders, 
who  shall  be  chosen  by  the  stockholders  of  said  company  in 
the  manner  hereinafter  provided,  and  shall  hold  their  offices 
until  others  are  duly  elected  and  qualified  to  take  their  places 
as  directors.  And  the  said  directors,  seven  of  whom  (the 
president  being  one)  shall  be  a  quorum  for  the  transaction  of 
business,  shall  elect  one  of  their  members  to  be  president  of 
the  board,  who  shall  also  be  president  of  said  company.  They 
•  shall  also  choose  a  secretary,  and  such  other  officers  as  they 

32 


498  ORIGINAL   CHARTER    PADUCAH    DIVISION 

may  deem  necessary;  and  a  treasurer,  who  shall  give  bond 
with  security  to  said  company,  in  such  sum  as  the  directors 
may  require,  for  the  faithful  performance  of  his  trust. 

This  road  having1  been  purchased  by  the  Louisville  &  Nashville  Rail- 
road Company,  and  leased  by  it  to  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  it  now  forms  part  of  the  general  system  of  the  two  latter 
companies,  and  is  controlled  by  their  respective  directors. 

SEC.  5.  Stockholders'  meetings,  voting,  proxies,  election  of 

directors. — That  the  persons  authorized  by  the  third  section  of 
this  act  to  open  the  books  for  subscription  to  the  capital  stock 
are  hereby  authorized,  after  the  books  of  subscription  to  the 
capital  stock  of  said  company  are  closed,  or  when  the  sum  sub- 
scribed shall  exceed  two  hundred  thousand  dollars,  to  call  the 
first  meeting  of  the  stockholders  of  said  company,  in  such  way 
and  at  such  time  and  place  as  they  may  appoint,  for  the  choice 
of  directors  of  said  company;  and  in  all  meetings  of  the  stock- 
holders of  said  company  each  share  shall  entitle  the  holder 
thereof  to  one  vote,  which  vote  may  be  given  by  said  stock- 
holder in  person  or  by  lawful  proxy.  And  the  annual  meet- 
ings of  the  stockholders  of  said  company  for  the  choice  of  di- 
rectors shall  be  holden  at  such  time  and  place,  and  upon  such 
notice,  as  the  said  company  in  their  by-laws  may  provide. 

For  method  of  electing  directors  in  Nashville,  Chattanooga  &  St. 
Louis  Railway,  which  company  now  operates  this  road  as  a  part  of  its 
general  system,  see  ch.  1  herein,  sees.  8,  9. 

SEC.  6.— Failure  to  elect  directors;  vacancies.— That  in 

case  it  shall  so  happen  that  an  election  of  directors  shall  not  be 
made  on  any  day  appointed  by  the  by-laws  of  said  company, 
said  company  shall  not  for  that  cause  be  deemed  to  be  dis- 
solved, but  such  election  may  be  holden,  on  any  day  which 
shall  be  appointed  by  the  directors  of  said  company,  and  said 
directors  shall  have  power  to  fill  any  vacancy  which  may  occur 
by  death  or  otherwise. 

SEC.  7.  Powers  of  directors;  corporation  may  acquire 
land,  how;  contract  for  right  of  way.— That  the  directors  shall 

have  full  power  to  make  and  prescribe  such  by-laws,  rules,  and 
regulations  as  they  shall  deem  needful  and  proper,  touching 
the  disposition  and  management  of  the  stock,  property,  estate, 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         409 

and  effects  of  said  company,  not  contrary  to  this  charter,  or 
the  laws  of  this  state  or  of  the  United  States;  the  transfer  of 
shares,  the  duties  and  conduct  of  their  officers  and  servants, 
touching  the  election  of,  and  meeting  of,  the  directors,  and  all 
matters  whatsoever  which  may  appertain  to  the  concerns  of 
said  company.  Said  company  is  also  hereby  authorized  to 
purchase,  receive,  and  hold  such  estate  as  may  be  necessary 
and  convenient  in  accomplishing  the  objects  for  May  acauire 
which  this  incorporation  is  granted;  and  may,  by  Land- 
their  agents,  surveyors,  engineers,  and  servants,  enter  upon 
all  lands  and  tcnaments  through  which  they  may  deem  it 
necessary  to  make  said  road,  and  to  survey,  lay  out,  and  con- 
struct the  same,  and  to  agree  and  contract  for  the  land,  or 


of  wav,    with  owners    through   which    they  Land  for 
.  ,  .  .  Right  of 

may  intend  to  make  said  road.     In  case  said  lands  Way. 

belong  to  the  estate  of  any  deceased  person,  then  with  the  exec- 
utor of  such;  or  in  case  oi  the  same  belonging  to  a  minor,  or 
a  person  non  compox  mentis,  then  with  his  or  her  guardian  or 
guardians;  or  in  case  said  lands  be  held  by  trustees  of  school 
sections,  or  other  trustees  of  estates,  then  with  such  trustees; 
and  the  said  executors,  guardians  and  trustees  are  hereby  de- 
clared competent  for  such  estate,  or  minor,  to  contract  with 
said  company,  for  the  right  to  use,  occupy,  and  possess  the 
lands  of  such  estates,  minors,  or  trustees,  so  far  as  may  be 
necessary  to  the  purpose  of  said  railroad;  and  the  act  and  deed 
of  such  executors,  administrators,  guardians,  and  trustees  in 
relation  thereto,  shall  pass  the  title  in  said  land  in  the  same 
manner  as  if  said  deed  or  act  was  made  or  done  bv  a  le^al 

~ 

owner  of  full  age;  and  such  executor,  guardian,  or  trustee  shall 
account  to  those  interested,  upon  their  respective   bonds,  for 
the  amount  paid  him  in  pursuance  of  such  agreement  and  com- 
pensation.    And   if  the  said   parties    representing  Ar,,,tr 
land  prefer,   they  may  refer  the  question  of  com-  tton< 
pensation   to   arbitrators   mutually  chosen,    whose  award,    or 
that  of  their  umpire  in   case  of  disagreement,  shall  vest  title 
according  to  its  terms. 

1.  May  acquire  land.—  Hy  Acts  Ky.  1888,  ch.  300,  sec.  1,  approved  Feb- 
ruary 25,  1888,  the  company  was  authorized  to  "  establish  and  construct 


500  ORIGINAL    CHARTER   PADUCAH    DIVISION 

such  depots,  sidings,  turntables,  shops,  transfer  landings,  and  such 
other  offices  or  structures  as  may  be  deemed  expedient  by  the  company, 
and  may  purchase,  lease  or  otherwise  acquire  real  estate  and  personal 
property  for  its  railroad  tracks,  transfer  landings,  depots,  sidings, 
shops,  offices,  and  all  other  purposes  of  said  railroad  company.  In  the 
event  it  cannot  agree  with  the  owner  for  the  purchase  of  any  land  or 
materials  for  the  use  or  construction  of  said  railroad,  it  may  condemn  the 
same  under  the  general  law  of  this  state  for  its  purposes  and  uses."  See 
act  itself  in  next  chapter. 

2.  May  receive  gifts  of. — By  same  act,  sec.  3,  the  company  was  author- 
ized to  receive  gifts  or  donations  of  right  of  way,  or  of  any  other  thing 
necessary  or  useful  in  the  construction  and  operation  of  the  road  or 
branches. 

SEC.  8.  Condemnation  for  right  of  way.— That  if  the  said 

company  cannot  agree  with  the  owner  of  the  land  through 
which  they  may  desire  the  road  to  pass,  or  with  the  executors, 
guardian,  or  trustee,  it  shall  and  may  be  lawful  for  the  clerk 
of  the  circuit  court  of  the  county  in  which  said  land  lies,  on 
application  of  said  company,  or  its  agents,  and  he  is  required 
to  issue  a  writ  of  ad  quod  damnuin,  commanding  the  sheriff 
that,  without  delay,  he  cause  a  jury  of  six  good  and  lawful 
men  to  be  upon  such  land  on  a  day  to  be  by  said  sheriff  fixed 
and  appointed,  and  whereof  it  shall  be  his  duty  to  give  notice 
to  the  owner,  executor,  administrator,  guardian,  or  trustee,  at 
least  five  days  before  such  day,  if  they  be  within  his  county, 
or  if  not,  or  if  the  owner  or  owners  be  unknown,  then  notice 
shall  be  given  by  advertisement,  to  be  by  said  sheriff  posted 
and  fixed  on  the  dwelling  house,  if  such  there  be,  or  in  a  public 
or  conspicuous  place,  at  least  five  days  before  such  appointed 
day,  and  also  by  advertising  the  same  in  some  newspaper 
published  nearest  the  land,  at  least  three  weeks  by  weekly  in- 
sertions prior  to  said  day,  and  then  cause  said  jury,  after 
being  duly  sworn  by  said  sheriff  or  justice  of  the  peace,  to 
make  true  inquest  of  the  value  of  the  land  so  taken,  and  of  the 
damage  that  will  be  sustained  by  such  owner  or  estate  by 
reason  of  making  such  road  through  such  land.  If  any  such 
juror  shall  fail  to  appear,  or,  by  reason  of  challenge  for  cause 
or  otherwise,  fail  to  sit  on  such  inquest,  the  said  sheriff  shall 
fill  said  jury  from  the  bystanders,  and  if  they  fail  to  render  a 
verdict,  the  said  sheriff  shall  again,  on  the  same  or  subsequent 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         501 

day,  impannel  a  new  jury  or  jurors,  until  a  verdict  be  had. 
Such  verdict  and  inquest,  regularly  certified  by  such  sheriff, 
shall  l)e  returned  to  the  office  of  the  clerk  of  the  circuit  court 
of  the  county  in  which  said  land  may  be,  and  there  remain 
among  the  records.  And  such  verdict  shall  vest  in  said  com- 
pany the  right  to  occupy  and  use  such  land  for  the  purposes  of 
said  railroad,  on  the  payment  or  tender  of  payment  of  the 
value  of  the  land  and  of  the  damages  thereon  assessed  against 
said  company;  and  in  case  of  persons  absent  or  unknown,  as 
aforesaid,  the  placing  of  the  amount  of  damages  to  the  credit 
of  the  owner,  in  the  hands  of  the  clerk  of  the  county  court  for 
the  county  in  which  such  lands  may  lie,  shall  be  deemed  and 
taken  as  payment,  and  such  clerks  shall  be  liable  on  their 
bonds  to  make  due  payment  of  said  money  on  demand. 

1.  Condemnation.— By  Acts  Ky.  1888,  ch.  300,  sec.  1,  approved  Feb- 
ruary 25,  1888,  the  company  was  given  power  to  condemn,  under  the 
general  laws  of  the  state,  land  or  material  for  the  use  or  construction  of 
said  railroad.     See  act  itself  in  next  chapter. 

2.  Condemnation. — After  the  consolidation  of  this  company  with  the 
Paducah  &  Tennessee  Railway  Company,  of  Tennessee,  and  the  Paducah 
&  Tennessee  Railroad  Company,  of  Tennessee,  as  heretofore  explained, 
it  was  thought  questionable  whether  or  not  condemnation   could  be 
made  under  the  above  section,  on  account  of  supposed  irregularities  in 
the  consolidation.     The  legislature  of  Kentucky,  however,  to  cure  this 
defect,  if  any  existed,  passed  an  act  approving  and  confirming  the  con- 
solidation    Acts  Ky.  1892,  ch.  85,  p.  211.     See  act  itself  in  next  chapter. 

3.  May  receive  gifts  of. — See  note  2  to  section  7  of  this  charter. 

SEC.  9.  Time  of  holding  inquest;  clerk's  fees,  etc.— That  it 

shall  be  the  duty  of  the  sheriff  to  appoint  and  hold  said  inquest 
within  ten  days  after  the  receipt  of  said  writ  of  ad  quod  dam- 
num,  except  in  such  cases  of  absence  aforesaid,  in  which  case 
thirty  days  shall  be  allowed  him,  and  five  days  in  addition  are 
allowed  him  for  every  additional  jury  which  he  may  have  under 
said  writ;  and  for  every  default  therein  the  said  sheriff  shall 
be  fined  by  the  circuit  court,  at  the  instance  of  either  party, 
not  less  than  twenty  nor  more  than  one  hundred  dollars;  and 
every  juror  and  witness  summoned  shall  be  fined  not  less  than 
ten  dollars  for  nonattendance.  Of  all  such  tines,  as  well  as 
costs,  the  circuit  court  of  the  county  shall  have  jurisdiction. 


502  ORIGINAL   CHARTER    PADUCAH    DIVISION 

There  shall  be  allowed  the  following  fees:  To  the  clerk  of  the 
circuit  court,  for  every  writ  of  ad  quod  damnum,  seventy-live 
cents;  for  receiving  and  filing  inquest,  seventy-five  cents;  to 
the  sheriff  for  giving  notice,  seventy-five  cents,  beside  print- 
er's fees,  not  exceeding  two  dollars  in  each  case;  for  holding 
inquest,  five  dollars,  and  for  summoning  witnesses,  twenty- five 
cents  each;  to  jurors,  seventy  cents  per  diem  each.  Which 
fees  are  not  allowed  until  a  verdict  be  returned  and  filed,  and 
shall  be  taxed  in  the  bill  of  costs  and  paid  by  the  company; 
Provided,  however,  That,  before  the  application  for  said  writ, 
the  said  company  may  make  a  tender  to  the  owner  or  owners  of 
any  such  land  a  sum  of  money  by  them  deemed  equivalent  to 
the  damage  to  be  sustained,  and,  upon  refusal  to  accept  the 
sum  tendered,  and  a  verdict  for  the  same  amount  to  a  less  sum, 
the  costs  shall  be  taxed  to  and  paid  by  the  owners  of  the  land 
upon  which  the  inquest  is  held. 

SEC.  10.  Counties  authorized  to  subscribe  for  stock,  how.— 

That  it  shall  and  may  be  lawful  for  any  of  the  counties  through 
which  said  road  may  pass,  and  they  are  hereby  permitted,  to 
subscribe  and  hold  stock  in  said  company  upon  the  same  terms 
and  conditions,  and  subject  to  the  same  restrictions,  with  other 
stockholders;  Provided,  however,  That  a  majority  of  the  qual- 
ified voters  in  such  county,  who  shall  cast  their  votes  as  herein 
provided  for,  shall  be  in  favor  of  the  subscription  for  such 
stock,  and  that  no  one  county  shall  subscribe  stock  in  said 
company  to  a  larger  amount  than  one  hundred  and  fifty  thou- 
sand dollars. 

By  Acts  Ky.  1888,  ch.  300,  sec.  2,  approved  February  25,  1888,  counties, 
cities,  towns,  and  civil  districts  were  allowed  to  subscribe  to  the  capital 
stock  of  this  company  in  a  method  therein  set  out.  See  act  itself  in  next 
chapter. 

SEC.  11.  Subscription  to  be  voted  upon,  hOW.— That,  when- 
ever the  company  aforesaid  shall  request  the  county  court  of 
any  county  through  which  the  said  road  will  pass  to  subscribe 
the  bonds  of  said  county  for  any  portion  of  the  capital  stock  of 
said  company,  not  exceeding  the  amount  hereby  authorized, 
the  county  court  shall,  within  sixty  days  thereafter,  on  a  day 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         503 

to  be  by  it  designated,  cause  the  vote  of  the  qualified  voters  of 
the  county,  at  the  several  election  precincts  and  places  of  vot- 
ing in  said  count}',  to  be  taken  upon  the  question  whether  or 
not  the  court  shall  subscribe  the  stock  as  proposed;  and  in  all 
matters  pertaining  to  the  taking  of  said  vote,  the  subscribing 
for  said  stock,  the  issuing  and  execution  of  said  bonds,  the 
levying  and  collecting  a  tax  to  pay  the  interest  thereon,  and 
the  appropriation  and  disbursements  of  the  funds  arising  there- 
from, the  county  court  shall  be  governed  and  regulated  (except 
so  far  as  is  provided  for  in  this  act)  by  the  provisions  of  an 
act  of  the  general  assembly  of  Kentucky,  entitled,  An  act  to 
authorize  the  county  of  Graves  to  hold  railroad  stock,  approved 
January  3,  1852. 

All  provisions  in  this  section  in  conflict  with  Acts  Ky.,  approved  Feb- 
ruary 25,  1888,  were  repealed  by  section  5  of  the  latter  act.  See  act 
itself  in  next  chapter. 

SEC.  12.— May  borrow  money,  issue  bonds,  etc.,  how.— That 

should  the  president  and  directors,  or  ti  majority  of  the  whole 
number  elected,  consider  it  expedient  for  the  purpose  of  aiding 
the  stockholders  or  hasten  the  completion  of  the  contemplated 
road,  it  shall  be  lawful  for  them  to  borrow  money  on  the 
credit  of  said  company,  not  exceeding  five  hundred  thousand 
dollars  at  any  one  time,  at  any  rate  of  interest  not  exceeding 
seven  per  cent,  per  annum;  and  the  said  company  may  issue 
such  evidences  of  such  indebtedness  as  may  be  deemed  proper, 
and  secure  the  same  by  giving  a  lien  upon  the  property  and 
assets  of  the  company;  and  the  said  company  may  sell  said 
bonds,  or  evidences  of  debt  at  such  rate  of  discount  and  at 
such  places  as  to  them  may  seem  advisable.  And  the  said 
company  shall  also  have  power  to  indorse  and  guaranty  the 
payment  of  bonds  issued  for  the  purchase  of  stock  in  said  road 
by  any  city,  county,  or  town. 

Borrow  money,  issue  bonds— mortgage.  -By  Acts  Kentucky 
1888,  ch.  300,  sec.  4,  approved  February  25,  1888,  the  company  was 
authorized  to  borrow  any  amount  of  money  not  exceeding  three 
million  dollars,  and  to  execute  the  bonds  of  the  company  in  such 
amounts  and  at  such  times  as  may  be  agreed  upon  by  the  company, 
in  a  manner  therein  set  out,  and  to  secure  the  payment  thereof  by  deed 
of  trust.  See  act  itself  in  next  chapter. 


504:  ORIGINAL    CHARTER   PADUCAH    DIVISION 

SEC.  13. — Tolls,  toll  houses,  etc.— That  said  company  is 
hereby  authorized  to  regulate  the  time  and  manner  in  which 
goods  and  passengers  shall  be  transported,  taken,  and  carried 
on  said  road,  and  shall  have  power  to  erect  and  maintain  toll 
houses  and  other  buildings  for  the  accommodation  of  their  con- 
cerns, as  they  may  deem  suitable  for  their  interests;  and  it 
shall  be  lawful  for  the  company,  from  time  to  time,  to  fix, 
regulate,  and  receive  the  tolls  and  charges  by  them  to  be  re- 
ceived for  transportation  of  persons  or  property  on  their  rail- 
road, or  way,  aforesaid,  hereby  authorized  to  be  constructed, 
erected,  built,  or  used,  or  any  part  thereof. 

SEC.  14.— Injury  to  or  obstruction  of  property,  engines, 

Cars,  etc.,  punishable. — That  if  any  person  or  persons  will,  or 
shall  willfull}*  do,  or  cause  to  be  done,  any  act  or  acts  whatsoever, 
whereby  any  building,  construction,  or  works  of  said  company, 
or  any  engines,  machine,  or  structure,  or  any  matter  or  thing 
appertaining  to  the  same  shall  be  stopped,  obstructed,  impeded, 
weakened,  injured,  or  destroyed,  the  person  or  persons  so 
offending  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 
forfeit  and  pay  to  said  company  double  the  amount  of  damages 
sustained  by  reason  of  such  offenses  or  injury,  to  be  recovered 
in  the  name  of  said  corporation,  with  costs  of  suit,  oy  action 
of  debt. 

SEC.  15.— Payments  on  subscription,  how  made;  enforce- 
ment Of. — That  the  directors  of  said  company  may  require  the 
payment  of  the  sum  or  sums  subscribed  to  the  capital  stock  of 
said  company,  at  such  times  and  in  such  proportions,  and 
upon  such  conditions  as  they  may  deem  fit;  and  in  case  any 
stockholder  shall  refuse  or  neglect  to  make  payment  pursuant 
to  the  requisition  of  the  board  of  directors,  the  stock  of  such 
stockholders  may  be  sold  by  the  directors  of  said  corporation, 
at  public  auction,  after  the  lapse  of  ninety  days  from  the  time 
when  the  payment  became  due,  and  the  surplus  money,  the 
avails  of  such  sale,  after  deducting  the  payments  due,  and  in- 
terest thereupon,  and  the  necessary  expenses  of  sale,  shall  be 
paid  over  to  such  delinquent  stockholder. 

SEC.  16.   Taxation. — That  the  property  owned  by  said  com- 


HA8HVILLE,    CHATTANOOGA    &    ST.    LOUIS   RAILWAY.         505 

puny  shall  at  all  times  be  subject  to  taxation  in  the  same  man- 
ner and  to  the  same  extent  as  similar  property  owned  by 
other  railroad  companies. 

I.  This  section  repealed  by  Acts  Ky.,  approved  February  25,  1888. 
See  act  in  next  chapter. 

SEC.  17.  Time  for  Completion.— That  if  said  railroad  shall 
not  be  commenced  within  five  years  from  the  passage  of  this 
act,  and  shall  not  be  finished  within  this  state  in  ten  years  from 
the  time  of  commencement  thereof,  then  this  act  shall  be  null 
and  void. 

Approved  March  8,  1854. 

1.  The  above  section  was  repealed  by  Acts  1873,  ch.  315,  p.  394,  sec.  7. 
Approved  March  5,  1873.     See  act  itself  in  next  chapter. 

2.  Hy  Acts  18S8,  ch.  300,  sec.  6,  it  was  provided  that  the  work  of  con- 
structing the  railroad  should  convnence  in  two  years,  and  the  road  com- 
pleted in  five  years,  from  the  passage  of  the  act.     See  act  itself  in  next 
chapter. 

ORIGINAL     CHARTER     OF    THE     PADUCAH     & 
TENNESSEE  RAILWAY   COMPANY. 

[OF   TENNESSEE.] 

Chartered  under  General  Acts  Tenn.  1875,  ch.  142,  sec.  6. 

STATE  or  TENNESSEE — CHARTER  OF  INCORPORATION. 
SECTION  i.  Incorporation,  name,  route,  general  powers.— 

Be  it  knmcn.  That  R.  L.  Ellison,  S.  H.  Caldwell,  J.  T.  Will- 
iams, George  D.  Vanhorn,  A.  B.  Lamb,  W.  D.  Kendall,  J. 
L.  Lemonds,  J.  N.  Thomason,  W.  A.  Carter,  and  W.  H. 
Hudson,  citizens  over  the  age  of  twenty-one  years,  are  herein 
and  herel>y  organized  and  constituted  a  body  politic  and  corpo- 
rate in  accordance  with  the  laws  of  the  state  of  Tennessee, 
under  the  name  of  the  Paducah  &  Tennessee  Kail  way  Com- 
pany, with  perpetual  succession,  for  the  purpose  of  laying  out, 
constructing,  and  operating  and  maintaining  a  line  of  railway 
with  one  or  more  tracks  from  a  point  in  said  state,  upon  the 
north  line  of  said  state,  in  the  county  of  Henry  in  said  state, 
and  at  the  point  on  said  state  line  where  the  tracks  of  the 
Paducah  &  Tennessee  Railroad,  of  Kentucky,  strikes  the  same, 


506  ORIGINAL   CHARTER    PADUCAH    DIVISION 

and  to  connect  with  the  same,  thence  in  a  southerly  direction 
to  a  point  within  one-half  of  a  mile  of  the  courthouse  in  said 
cit}r  of  Paris,  in  said  Henry  county,  in  the  state  of  Tennessee. 
The  general  offices  of  said  company  are  hereby  located  in  the 
city  of  Paris  in  said  county  of  Henry.  The  capital  stock  of 
said  company  or  corporation  is  for  the  present  fixed  at  twenty- 
five  thousand  dollars  per  mile  of  said  road  and  side  tracks,  as 
proposed  to  be  constructed,  with  the  privilege  of  increasing 
the  same  from  time  to  time,  as,  in  the  opinion  of  the  board  of 
directors,  the  interest  of  said  company  may  require.  The  said 
incorporators  shall  constitute  the  first  board  of  directors  of 
said  company,  who  shall  remain  in  office  until  their  successors 
are  chosen;  vacancies  in  said  board  may  be  filled  by  a  majority 
of  the  remaining  members  thereof.  Said  directors  may  bar- 
gain and  sell  said  capital  stock  and  local  subsidy  bonds  and  the 
bonds  of  said  company,  in  whole  or  in  part,  in  payment  for 
the  construction  of  said  road  or  any  part  thereof;  said  stock 
shall  be  divided  into  shares  of  one  hundred  dollars  each. 

SEC.  2.  [This  section,  together  with  succeeding  sections,  up 
to  and  including  section  41,  are  the  same  as  the  corresponding 
sections  of  the  charter  granted  the  Decatur,  Chesapeake  & 
New  Orleans  Railway  Company  by  act  Tennessee,  and  hence 
are  here  omitted  for  economy.  See  sections  on  page  414  et 
seq.  herein.] 

SEC.  42.  [In  addition  to  the  powers  aforesaid  this  corpora- 
tion shall  have  the  right  to  guarantee  or  purchase  the  bonds  or 
stock  of  other  corporations;  to  lease  or  purchase  the  roads 
and  property  of  other  corporations,  and  operate  the  same;  to 
sell  or  lease  its  own  road  and  property  to  any  other  corpora- 
tion, in  whole  or  in  part;  to  unite  and  connect  the  track  or 
tracks  of  its  road  with  the  tracks  of  any  other  corporation,  and 
by  resolution  of  its  board  of  directors  and  stockholders  con- 
solidate and  merge  the  capital  stock  of  any  other  corporation 
into  and  with  that  of  its  own  capital  stock,  or  its  own  capital 
stock  with  that  of  any  other  corporation;  to  construct  its  road 
across  or  upon  any  highway,  county  road  or  street  or  alley  of 
any  city,  town,  or  village,  but  in  such  manner  as  to  allow 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         507 

wagons  and  other  vehicles  safely  to  pass  upon  the  same;  to 
construct  the  track  or  tracks  of  its  road  over  or  across  the  track 
or  tracks  of  any  other  company,  and  to  unite  and  connect  with 
the  same,  and  finally  to  possess  the  right  to  do  all  other  acts 
and  tilings  necessary  or  proper  to  l>e  done  in  the  construction 
or  operation  of  said  road,  or  any  part  thereof  whatsoever  the 
same  may  he  or  be  called;  and  all  other  rights  and  privileges, 
powers  and  immunities  which  are  now,  or  which  may  hereafter 
be  conferred  upon  similar  corporations  in  said  state  by  any 
general  or  special  law,  are  expressly  adopted  and  claimed  for 
and  to  inure  to  the  use  and  benefit  of  this  corporation  what- 
ever such  rights,  powers,  privileges,  or  immunities  may  be  or 
be  called.] 

The  above  part  in  brackets  is  not  in  the  regular  form  of  charters 
granted  under  the  Acts  of  1875,  ch.  142.  It  is  largely  embraced  in  the 
general  laws,  however,  which  became,  upon  their  passage,  a  part  of  its 
organic  existence. 

We,  the  undersigned,  apply  to  the  state  of  Tennessee  by 
virtue  of  the  law  of  the  land  for  a  charter  of  incorporation,  for 
the  purposes  and  with  the  powers,  etc.,  declared  in  the  forego- 
ing instrument. 

Witness  our  hands,  this  twentieth  day  of  March  A.  D. 
eighteen  hundred  and  eighty-eight  (1888). 

A.  B.  LAMB, 
W.  D.  KENDALL, 
J.  L.  LEMONDS, 
J.  X.  THOMASON, 
W.  A.  CARTER, 
W.  H.  HUDSON, 
R.  L.  ELLISON, 
S.  H.  CALDWELL, 
J.  T.  WILLIAMS, 
GEO.  D.  VANHORN. 

The  above  charter  was  properly  acknowledged  and  registered  in  the 
secretary  of  state's  office,  in  book  "S.,"  p.  57,  March  24,  188S;  in  Henry 
county,  Tenn.,  in  book  "  Y  ''  of  deeds,  pp.  578-588. 


508  ORIGINAL   CHARTER    PADUCAH    DIVISION 

ORIGINAL     CHARTER     OF     THE    PADUCAH     & 
TENNESSEE   RAILROAD   COMPANY. 

[OF    TENNESSEE.] 

Chartered  under  General  Acts  Tenn.,  1875,  ch.  142,  §  6. 

STATE  OF  TENNESSEE — CHARTER  OF  INCORPORATION. 
SECTION  i.  Incorporation,  name,  route,  general  powers.— 

Be  it  known,  That  R.  L.  Ellison,  S.  H.  Caldwell,  J.  T.  Will- 
iams, Geo.  D.  Vanhorn,  A.  B.  Lamb,  W.  D.  Kendall,  J.  L. 
Lemonds,  J.  N.  Thoraason,  W.  A.  Carter,  and  W.  H.  Hud- 
son, citizens  over  the  age  of  twenty-one  years,  are  herein  and 
hereby  organized  and  constitute  a  body-politic  and  corporate 
in  accordance  with  the  laws  of  the  State  of  Tennessee,  under 
the  name  of  the  Paducah  &  Tennessee  Railroad  Company,  with 
perpetual  succession,  for  the  purpose  of  laying  out,  construct- 
ing, and  operating  a  line  of  railway,  with  one  or  more  tracks, 
from  a  point  at  or  near  the  city  of  Paris,  in  Henry  county,  in 
said  state,  and  from  a  connection  with  the  tracks  of  the  Padu- 
cah &  Tennessee  Railway  Company  at  or  near  said  city,  thence 
in  a  southerly  direction  across  said  state,  upon  the  most  passa- 
ble and  practical  line  to  be  chosen  by  said  company,  to  a  point 
upon  the  south  line  of  said  state,  in  the  county  of  Wayne. 
The  capital  stock  of  said  company  is  for  the  present  fixed  at 
three  million  of  dollars,  with  the  privilege  of  increasing  the 
same  from  time  to  time,  as  in  the  opinion  of  the  board  of 
directors  of  said  company  the  interest  thereof  may  require. 
The  said  incorporators  shall  constitute  the  first  board  of 
directors  of  said  company,  and  remain  in  office  until  their  suc- 
cessors are  chosen.  Vacancies  in  said  board  may  be  filled  by 
a  majority  of  the  remaining  members  thereof.  Said  directors 
may  bargain  and  sell  said  capital  stock.  The  local  subsidy 
bonds,  if  any,  are  voted  to  said  company,  and  the  bonds  of 
said  company,  in  whole  or  in  part,  in  payment  for  the  con- 
struction of  said  road  or  any  part  thereof.  Said  capital  stock 
shall  be  divided  into  shares  of  one  hundred  dollars  each. 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.         509 

SEC.  2.  [This  section,  together  with  succeeding  sections  up 
to  and  including  section  41,  are  the  same  as  the  corresponding 
sections  of  the  charter  of  the  Decatur,  Chesapeake  &  New 
Orleans  Railway  Company,  by  Acts  Tennessee,  and  hence  are 
here  omitted  for  economy.  See  sections  referred  to  therein, 
on  page  414,  et  aeq.} 

SEC.  42.  [In  addition  to  the  powers  aforesaid,  this  corpora- 
tion shall  have  the  right  to  guarantee  or  purchase  the  bonds 
or  stock  of  other  corporations,  to  lease  or  purchase  the  roads 
and  property  of  other  corporations,  and  operate  the  same;  to 
sell  or  lease  its  own  road  and  property  to  any  other  corpora- 
tion, in  whole  or  in  part;  to  unite  and  connect  the  track  or 
tracks  of  its  road  with  the  tracks  of  any  other  corporation, 
and,  by  resolution  of  its  board  of  directors  and  stockholders, 
consolidate  and  merge  the  capital  stock  of  any  other  corpora- 
tion into  and  with  that  of  its  own  capital  stock,  or  its  own 
capital  stock  wifh  that  of  any  other  corporation;  to  construct 
its  road  across  any  stream  of  water,  navigable  or  otherwise, 
not,  however,  to  interfere  with  the  use  and  navigation  of  the 
same;  to  construct  its  road  across  or  upon  any  highway, 
county  road  or  street  or  alley  of  any  city,  town  or  village,  but 
in  such  manner  as  to  allow  vehicles  safely  to  pass  upon  the 
same;  to  construct  the  track  or  tracks  of  its  road  over  or 
across  the  track  or  tracks  of  any  other  company,  and  to 
unite  and  connect  with  the  same,  and  finally  to  possess  the 
right  to  do  all  other  acts  and  things  necessary  or  proper  to  be 
done  in  the  construction  or  operation  of  said  road,  or  any  part 
thereof,  whatsoever  the  same  may  be  or  be  called;  and  all 
other  rights  and  privileges,  powers  and  immunities  which  are 
now  or  which  may  hereafter  be  conferred  upon  similar  corpo- 
rations in  said  state,  by  any  general  or  special  law,  are  ex- 
pressly adopted  and  claimed  for  and  to  inure  to  the  use  and 
benefit  of  the  corporation,  whatever  such  rights,  powers,  priv- 
ileges or  immunities  may  be  or  be  called,]  we,  the  undersigned, 
apply  to  the  State  of  Tennessee,  by  virtue  of  the  law  of  the 
land,  for  a  charter  of  incorporation  for  the  purposes  and  with 
the  powers,  etc.,  declared  in  the  foregoing  instrument. 


510  ARTICLES    RELATING    TO    PADUCAH    DIVISION 

Witness  our  hands,  this  the  twentieth  day  of   March,  A.  D. 
eighteen  hundred  and  eighty-eight  (1888). 

•  W.  D.  KENDALL, 

J.  L.  LEMONDS, 
J.  N.  THOMASON, 
W.  A.  CARTER, 
W.  H.  HUDSON, 
R.  L.  ELLISON, 
S.  H.  CALDWELL, 
J.  T.  WILLIAMS, 
GEO.  D.  VANHORN. 
A.  B.  LAMB. 

1.  The  above  part  in  brackets  was  inserted  in  this  charter,  though  it 
is  not  in  the  general  form  of  charters,  under  Acts  of  1875,  ch.  142.     It  is 
largely  embraced  in  the  general  laws,  however,    which   become,  upon 
their  passage,  a  part  of  its  organic  existence. 

2.  Where  registered. — The  above  charter  was  properly  acknowledged 
and  registered  in  the  secretary  of  state's  office,  March  24,  1888.  in  book 
"S,"  p.  53;  in  Henry  county,  Tenn.,  in  book  "  Y  "  of  deeds,  p.  587. 

ARTICLES  OF  CONSOLIDATION  CREATING  THE 
PADUCAH,  TENNESSEE  &  ALABAMA  RAIL- 
ROAD COMPANZ. 

Parties. — Articles  of  consolidation  made  and  entered  into  by 
and  between  The  Paducah  &  Tennessee  Railroad  Company,  a 
corporation  legally  created  and  existing  under  and  in  accord- 
ance with  the  laws  of  the  state  of  Kentucky,  party  of  the  first 
part,  and  the  Paducah  &  Tennessee  Railway  Company,  a  cor- 
poration legally  organized  and  existing  under  and  in  accord- 
ance with  the  general  laws  of  the  state  of  Tennessee,  party  of 
the  second  part,  and  the  Paducah  &  Tennessee  Railroad  Com- 
pany, a  corporation  likewise  organized  and  legally  existing 
under  and  in  accordance  with  the  general  laws  of  the  said  state 
of  Tennessee,  party  of  the  third  part.  Witnesseth:  for  that — 

Preamble.— WHEREAS,  The  party  of  the  first  part  has  the 
legal  right  to  construct  and  operate,  and  has  commenced  to 
construct  a  line  of  railroad  from  the  city  of  Paducah  in  said 
state  of  Kentucky,  thence  in  a  southerly  direction  to  a  point 


NASHVILLE,    CHATTANOOGA    4    ST.    LOUIS    RAILWAY.         511 

upon  the  south  line  of  said  last  named  state,  in  the  county  of 
Calloway  therein;  and, 

WHEREAS,  The  party  of  the  second  part,  has  the  like  legal 
right  to  construct  and  operate,  and  has  commenced  to  construct 
a  line  of  railway  from  the  same  point  upon  the  line  dividing 
the  said  states  of  Kentucky  and  Tennessee,  at  which  the  line  of 
the  said  party  of  the  first  part  terminates,  thence  in  a  southerly 
direction  to  a  point  at  or  near  the  city  of  Paris,  in  Henry 
county,  in  said  state  of  Tennessee;  and, 

WHEREAS,  The  party  of  the  third  part  has  the  legal  right  to 
construct  and  operate,  and  has  commenced  to  construct  a  line 
of  railroad  from  the  same  point,  at  or  near  to  the  said  city  of 
Paris,  at  which  the  line  of  the  said  party  of  the  second  part 
terminates,  thence  in  a  southerly  direction  across  the  said  last 
named  state  to  a  point  upon  the  line  dividing  the  states  of 
Tennessee  and  Alabama  in  Wayne  county,  Tenn. ;  and, 

WHEREAS,  Each  of  said  companies  has  full  authority  of  law 
to  unite  and  consolidate  its  corporate  property,  capital  stock, 
and  franchises  with  those  of  any  other  company  or  companies, 
whether  created  by  the  laws  of  the  same  or  different  states; 
and, 

WHEREAS,  The  stockholders  of  each  of  the  said  companies, 
parties  hereto,  have  respectively,  at  legal  meetings  thereof, 
by  resolutions  unanimously  adopted,  respectively  requested, 
authorized  and  directed,  that  the  property,  capital  stock,  and 
franchises  of  said  respective  companies  should  be  united  and 
consolidated  into  one  undertaking  and  corporate  entity;  which 
said  action  of  said  stockholders  has  in  all  things  been  fully 
concurred  in  by  like  resolutions  of  each  of  the  respective 
boards  of  directors  of  said  companies,  parties  hereto,  and  the 
respective  presidents  thereof,  for  them  respectively  ordered  to 
execute  these  articles  of  consolidation,  and  to  be  attested 
by  their  respective  secretaries;  now,  therefore, 

Be  it  known,  That,  for  the  purposes  of,  and  in  consideration 
of,  securing,  and  to  secure  the  mutual  benefits  and  advantages 
resulting  to,  and  to  result  from  such  union  and  consolidation 
of  said  companies,  parties  hereto,  respectively,  and  in  order  to 


512  ARTICLES    RELATING    TO    PADUCAH    DIVISION 

consummate  such  consolidation  and  unity  of  interest,  as  afore- 
said, it  is  herein  and  hereby  mutually  stipulated,  covenanted, 
and  agreed  by  and  between  the  said  companies,  parties  hereto, 
as  follows: 

ARTICLE  i.  Consolidation,  name,  liabilities,  and  powers.— 

That  said  companies,  parties  hereto,  be  and  the  same  are 
hereby  united  and  consolidated  into  one  corporate  entity, 
which  shall  be  known  and  called  "The  Paducah,  Tennessee  & 
Alabama  Railroad  Company,"  and  that  the  corporate  seal 
thereof  shall  be  the  name  thereof,  in  circular  form,  encircling 
the  word  "seal;"  which  said  consolidated  company  shall  be 
and  become  liable  in  fact  and  in  law  for,  and  shall  pay  all  just 
debts,  contracts,  and  obligations  legally  owing,  incurred  or 
entered  into  by  either  of  the  said  parties  hereto;  and  shall  have, 
own,  possess,  hold,  receive  and  enjoy,  all  and  singular,  the 
corporate  rights,  subscriptions  to  capital  stock,  choses  in 
action,  privileges,  powers,  property,  donations  to,  effects  and 
estate  of  every  character,  present  and  prospective,  as  claimed 
by,  coming  to,  belonging  to,  held,  possessed  or  enjoyed  by  the 
said  companies,  parties  hereto,  respectively,  whatever  the  same 
may  be  or  be  called. 

ART.  2.  Capital  StOCk,  value  Of  Shares.— The  amount  of  the 
capital  stock  of  said  consolidated  company  shall  be  five  million 
(§5,000,000)  dollars,  and  be  divided  into  shares  of  one  hun- 
dred ($100)  dollars  each,  and  be  issued  at  the  rate  of  §20,000 
per  mile  of  constructed  road,  reserving,  however,  the  right 
and  privilege  of  increasing  or  decreasing  the  same  from  time 
to  time  as  may  be  or  become  necessary  for  the  uses  and  pur- 
poses of  such  consolidated  company. 

ART.  3.  Stock  in  old  companies  to  be  exchanged  for  stock 

in  new. — The  stockholders  of  said  companies,  parties  hereto, 
shall  each  surrender  all  and  every  share  of  such  capital  stock 
so  held  by  them  respectively  to  the  secretary  of  such  consoli- 
dated company  and  receive  in  lieu  and  exchange  therefor  an 
equal  amount  of  the  capital  stock  of  such  consolidated  com- 
pany, dollar  for  dollar. 

ART.  4.   Directors,  number  Of,  etc.— That  the  board  of  di- 


NASHVILLE,    CHATTANOOGA   4    ST.    LOUIS    RAILWAY.         513 

rectors  of  such  consolidated  company  shall  be  composed  of  nine 
(9)  stockholders  thereof,  which  numl>er  may  be  increased  or 
decreased  at  the  will  of  such  stockholders  at  any  regular  meet- 
ing thereof;  the  first  board  of  directors  of  such  consolidated 
company  shall  be  composed  of  the  following  named  persons,  to 
wit:  Thomas  H.  Puryear,  Charles  Reed,  E.  P.  Noble,  B.  C. 
Keys,  L.  C.  Lynn,  John  C.  McElraith,  J.  J.  Head,  A.  B. 
Lamb,  John  L.  Booth,  who  shall  hold  office  until  the  next 
regular  meeting  of  such  stockholders  and  until  their  successors 
are  elected. 

ART.  5.  Officers  elected,  how;  books  of  old  companies  to  be 

turned  Over  tO. — The  persons  named  in  the  foregoing  article 
as  directors  of  such  consolidated  company  shall  immediately, 
after  the  execution  of  these  articles  by  said  parties  hereto, 
convene  and  organize  by  electing  a  president  and  vice-presi- 
dent from  among  their  number,  and  also  a  secretary,  auditor, 
treasurer,  and  general  solicitor,  who  may  or  may  not  be  mem- 
bers of  such  board  of  directors;  and  thereupon  the  respective 
secretaries  and  treasurers  of  the  said  parties  hereto  shall 
promptly  deliver  and  turn  over  to  the  secretary  and  treasurer 
respectively  of  such  consolidated  company  all  books,  records, 
papers,  accounts,  and  documents  of  every  character,  and  all 
moneys,  stocks,  bonds,  vouchers,  contracts,  and  other  things 
of  value  appertaining  to  their  said  offices  or  either  of  them. 

ART.  6.  Consolidation  consummated;  franchises,  etc.,  of 

Old  companies  vest  in  new. — That  upon  the  execution  of  these 
articles  of  consolidation  the  same  shall  be  binding  upon  the 
said  parties  hereto,  and  such  consolidation  shall  be,  and  l>e 
considered  as  fully  consummated  without  further  action  upon 
the  part  of  the  parties  hereto,  or  either  of  them,  or  any 
officer  thereof;  and  thereupon  each  of  said  companies, 
parties  hereto,  with  all  their  charter  rights,  privileges, 
powers,  immunities,  capital  stock  and  subscriptions  to  capi- 
tal stock,  corporate  property,  present  and  prospective,  of 
every  character  and  description,  and  franchises,  shall  be 
and  become  fused,  united,  and  consolidated  into  one  corporate 
entity  and  existence,  under  the  name  and  style  as  set  forth  in 

33 


514:  ARTICLES    RELATING    TO    PADUCAH    DIVISION 

the  first  paragraph  of  these  articles,  and  thereupon  the  presi- 
dent and  secretary  of  such  consolidated  company  shall  promptly 
make  out,  or  cause  to  be  made  out,  and  filed  and  recorded,  any 
and  all  such  statements  and  transcripts  relating  to  such  con- 
solidation as  may  be  required  to  be  made  out,  filed  or  recorded, 
in  any  office  or  place,  by  the  laws  of  the  said  states  of  Ken- 
tucky and  Tennessee,  or  either  of  them. 

ART.  7.  Bonds  to  be  issued;  mortgage  provided,  for  what. 

—It  is  further  agreed  that  the  proper  officers  of  such  consoli- 
dated company  shall,  upon  behalf  thereof,  execute  in  due  form 
of  law  a  mortgage  or  deed  of  trust,  one  or  more,  to  such 
trustee  as  may  be  chosen  by  the  parties  in  interest,  covering 
the  property  and  franchises  of  such  company,  to  secure  the 
payment  of  a  series  of  the  bonds  thereof,  to  become  due  and 
payable,  at  such  times,  and  bear  such  rate  of  interest,  and  be 
of  such  amount,  and  of  such  terms  and  provisions  as  will 
conform  to  and  satisfy  the  requirements  of  the  contracts  here- 
tofore made  by  the  parties  hereto  with  Messrs.  Mclntyre, 
Concannon  &  Co.,  and  assigns,  for  the  construction  of  the 
several  roads  of  the  said  parties  hereto,  which  said  last-men- 
tioned contracts  are  hereby  in  all  things  ratified,  confirmed  and 
adopted  as  the  contracts  of  such  consolidated  company,  and  are 
to  be  performed  by  it  in  good  faith. 

It  is  understood  that  the  said  series  of  bonds  as  above  agreed 
to  be  issued  by  the  said  consolidated  company  are  to  be  used 
to  take  up  and  retire  bonds,  if  any,  that  may  have  been  issued 
by  any  of  the  parties  hereto  prior  to  such  consolidation,  and  for 
the  other  and  general  purposes  of  such  consolidated  company. 

ART.  8.  Directors  given  power  to  carry  consolidation  into 

effect. — The  board  of  directors  of  such  consolidated  company 
shall  have  full  power,  and  is  hereby  fully  authorized  to  do  and 
perform  any  and  all  acts  and  things  necessary  or  proper  to  be 
done  in  order  to  carry  such  merger  and  consolidation  into 

«/ 

effect,  according  to  the  true  intent  and  object  of  the  parties 
heieto,  as  expressed  herein  and  in  the  various  resolutions 
adopted  authorizing  this  consolidation,  and  as  counsel  learned 
in  the  law  may  advise. 


NASHVILLE,    CHATTANOOGA    4    ST.    LOUIS    RAILWAY.         515 

In  testimony  whereof,  the  said  Paducah  &  Tennessee  Rail- 
way Company,  party  of  the  first  part  herein,  has,  by  authority 
of  the  stockholders  and  board  of  directors  herein  set  forth,  and 
by  authority  of  the  law  of  the  said  state  of  Kentucky,  caused 
these  articles  of  consolidation  to  be  signed  by  the  president 
thereof,  and  to  be  attested  by  the  signature  of  the  secretary 
thereof  (said  company  having  no  corporate  seal),  upon  this  the 
fifteenth  day  of  July,  A.  D.  1889. 

PADUCAH  &  TENNESSEE  R.  R.  Co., 

By  T.  H.  PURYEAR,  President. 
Attest:  ED  P.  NOBLE,  Secretary. 

In  testimony  whereof,  the  said  Paducah  &  Tennessee  Rail- 
way Company,  party  of  the  second  part  herein,  has,  by 
authority  of  its  stockholders  and  board  of  directors  as  herein- 
above  set  forth,  and  by  authority  of  the  law  of  the  said  state 
of  Tennessee,  caused  these  articles  of  consolidation  to  be  signed 
by  the  president  thereof  and  to  be  attested  by  the  signature  of 
the  secretary  thereof  (said  company  having  no  corporate  seal 
provided),  upon  this  the  first  day  of  July,  A.  D.  1889. 

"  THE  PADUCAH  AND  TENNESSEE  RAILWAY  Co." 

By  J.  J.  HEAD,  President. 
Attested:  By  W.  A.  CARTER,  Secretary. 
In  testimony  whereof,  the  said  Paducah  &  Tennessee  Rail- 
road Company,  party  of  the  'third  part  herein,  has  by  authority 
of  its  stockholders  and  board  of  directors  as  hereinabove  set 
forth,  and  also  by  authority  of  the  law  of  the  said  state  of  Ten- 
nessee, caused  these  articles  of  consolidation  to  be  signed  by 
the  president  thereof,  and  to  be  attested  by  the  signature  of 
the  secretary  thereof  vsaid  company  having  no  corporate  seal 
provided  so  as  to  be  atfixed  hereto),  upon  this  the  first  day  of 
July,  A.  D.  1889. 

THE  PADUCAH  &  TENNESSEE  RAILROAD  Co., 
Attested:  By  A.  B.  LAMB,  President. 

By  J.  L.  LEMONDS,  Secretary. 

The  above  articles  of  agreement  were  properly  acknowledged  and 
registered  in  the  secretary  of  state's  office  of  Tennessee,  in  book  "P," 
p.  622;  in  the  secretary  of  state's  office  of  Kentucky,  in  book ,  p. 


516  ARTICLES  RELATING  TO  PADUCAH  DIVISION 

CERTIFICATE  OF  THE  RECORDS  OF  THE  VARIOUS  CONSTITUENT- 
COMPANIES  EFFECTING  THE  CONSOLIDATION  INTO  THE 
PADUCAH,   TENNESSEE    &  ALABAMA   RAIL- 
ROAD COMPANY. 

Name  Of  Companies.— I,  J.  W.  Fristoe,  secretary  of  the 
Paducah,  Tennessee  &  Alabama  Railroad  Company,  do  hereby 
certify  that  the  following  is  a  synopsis  of  the  records  of  seven 
different  meetings  of  the  stockholders  and  directors  of  the 
Paducah  &  Tennessee  Railway  Company:  The  Paducah  & 
Tennessee  Railroad  Company  of  the  state  of  Kentucky,  the 
Paducah  &  Tennessee  Railroad  Company  of  the  state  of  Ten- 
nessee, and  the  Paducah,  Tennessee  &  Alabama  Railroad 
Company,  as  taken  from  the  record  or  minute  books  of  said 
companies. 

1.  Paducah  &  Tennessee  Railway  Company,  of  Tennessee; 

Stockholders'  meeting. — At  a  meeting  of  the  stockholders  of 
the  Paducah  &  Tennessee  Railway  Company,  held  in  the  city 
of  Paris,  Tenn.,  on  July  1,  1889,  at  9  o'clock  A.M.,  all  the 
stockholders  being  present  in  person  or  represented  by  legal 
proxy,  the  following  action  was  taken,  recorded  on  said  record 
book,  pages  62  to  66,  both  inclusive:  That  a  proposed  consoli- 
dation of  the  Paducah  &  Tennessee  Railway  Company  with 
The  Paducah  &  Tennessee  Railroad  Company,  of  the  state  of 
Kentucky,  and  the  Paducah  &  Tennessee  Railroad  Company, 
of  the  state  of  Tennessee,  was  approved,  and  the  board  of 
directors  of  the  Paducah  &  Tennessee  Railway  Company  was 
authorized  and  directed  to  make  such  consolidation.  Minutes 
signed  by  A.  B.  Lamb,  chairman,  and  A.  H.  Duncan,  sec- 
retary. 

2.  Paducah  &  Tennessee  Railway  Company,  of  Tennessee; 

directors'  meeting.— Pursuant  to  the  above  the  board  of 
directors  of  the  said  Paducah  &  Tennessee  Railway  Company, 
at  a  meeting  held  in  the  city  of  Paris,  Tenn.,  on  July  1,  1889, 
the  following  action  was  taken,  all  the  directors  of  said  rail- 
way company  being  present:  That  the  Paducah  &  Tennessee 
R-iilway  Company,  with  all  its  properties,  capital  stock,  and 
franchises,  was  duly  consolidated  with  the  Paducah  &  Tennes- 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         517 

see  Railroad  Company,  of  the  state  of  Kentucky,  and  the 
Paducah  &  Tennessee  Railroad  Company,  of  the  state  of  Ten- 
nessee, under  the  consolidated  name  and  style  of  The  Paducah, 
Tennessee  &  Alabama  Railroad  Company,  as  shown  by  the 
minutes  of  said  railway  company  on  pages  67  to  71,  both  in- 
clusive; said  minutes  being  signed  by  J.  J.  Head,  president, 
and  A.  H.  Duncan,  secretary. 

3.  Paducah  &  Tennessee  Railroad,  of  Kentucky;  stock- 
holders' meeting. — At  a  meeting  of  the  stockholders  of  the 
Paducah  &  Tennessee  Railroad  Company,  of  the  state  of   Ken- 
tucky,  held  in  the  city  of  Paducah,   Ky.,  July  15,  1889,  all 
the  stockholders  being  present,   either  in  person  or  by  legal 
proxy,  the  following  action  was  had:  The  proposed  consolida- 
tion of  this,  the  Paducah  &  Tennessee  Railroad  Company,  of 
Kentucky,  with   the   Paducah  &  Tennessee  Railway  Company 
and  the  Paducah  &  Tennessee  Railroad  Company,  of  the  state 
of  Tennessee,  was  approved,  and  the  board  of  directors  of  the 
Paducah  &  Tennessee   Railroad  Company,   of  Kentucky,  was 
authorized    and   directed    to    make    such    consolidation;    said 
minutes  were  signed  by  T.  H.  Puryear,  president. 

4.  Paducah  &  Tennessee  Railroad  Company,  of  Kentucky; 

directors'  meeting. — Pursuant  to  above,  at  a  meeting  of  the 
board  of  directors  of  the  Paducah  &  Tennessee  Railroad  Com- 
pany, of  the  state  of  Kentucky,  held  in  the  city  of  Paducah, 
Ky.,  at  3  o'clock  P.M.,  on  the  fifteenth  day  of  July,  1889,  all 
the  members  being  present,  the  following  action  was  taken: 
The  Paducah  &  Tennessee  Railroatl  Company,  of  Kentucky, 
with  all  its  properties,  capital  stock  and  franchises,  was  duly 
consolidated  with  the  Paducah  &  Tennessee  Railway  Company 
and  the  Paducah  &  Tennessee  Railroad  Company,  of  the  state 
of  Tennessee,  under  the  name  and  style  of  The  Paducah,  Ten- 
nessee &  Alabama  Railroad  Company,  the  minutes  of  said 
meeting  being  recorded  in  the  minute  book  of  the  said  Paducah 
&  Tennessee  Railroad  Company,  of  Kentucky,  on  pages  36 
to  39,  inclusive,  and  signed  by  T.  H.  Puryear,  president. 

5.  Paducah  &  Tennessee  Railroad  Company,  of  Tennessee; 

Stockholders'  meeting. — At  a  meeting  of  the  stockholders  of 


518  ARTICLES    RELATING    TO    PADUCAH    DIVISION 

the  Paducah  &  Tennessee  Railroad  Company,  of  the  state  of 
Tennessee,  held  at  the  city  of  Paris,  Tenn.,  at  10  o'clock  A.M., 
on  July  1,  1889,  at  which  all  the  stockholders  were  personally 
present,  the  following  action  was  had:  The  proposed  consolida- 
tion of  the  Paducah  &  Tennessee  Railroad  Company,  of  the 
state  of  Tennessee,  with  the  Paducah  &  Tennessee  Railway 
Company  and  the  Paducah  &  Tennessee  Railroad  Company,  of 
the  state  of  Kentucky,  was  approved,  and  the  board  of  di- 
rectors of  this,  The  Paducah  &  Tennessee  Railroad  Company, 
of  the  state  of  Tennessee,  were  authorized  and  directed  to  make 
such  consolidation,  the  minutes  of  said  meeting  being  recorded 
in  the  minute  or  record  book  of  said  Paducah  &  Tennessee 
Railroad  Company,  of  the  state  of  Tennessee,  on  pages  120  to 
123,  inclusive,  and  signed  by  A.  B.  Lamb,  chairman. 

6.  Paducah  &  Tennessee  Railroad  Company,  of  Tennessee; 

directors'  meeting. — Pursuant  to  the  above,  at  a  meeting  of 
the  board  of  directors  of  the  Paducah  &  Tennessee  Railroad 
Company,  of  the  state  of  Tennessee,  at  which  a  full  board  were 
present,  said  meeting  held  in  the  city  of  Paris,  Tenn.,  July  1, 
1889,  the  following  action  was  had:  The  Paducah  &  Tennessee 
Railroad  Company,  of  the  state  of  Tennessee,  with  all  its  prop- 
erties, capital  stock  and  franchises,  was  duly  consolidated  with 
the  Paducah  &  Tennessee  Railway  Company,  of  the  state  of 
Tennessee,  and  the  Paducah  &  Tennessee  Railroad  Company, 
of  the  state  of  Kentucky,  under  the  name  and  style  of  The 
Paducah,  Tennessee  &  Alabama  Railroad  Company,  as  shown 
by  the  minutes  of  said  meeting,  recorded  on  the  minute  or 
record  book  of  said  company,  on  pages  124  to  127,  inclusive; 
said  minutes  signed  by  A.  B.  Lamb,  president,  and  A.  H. 
Duncan,  secretary  pro  tern. 

7.  Paducah,  Tennessee  &  Alabama  Railroad  Company;  di- 
rectors' meeting,  consolidation.— A  meeting  of  the  board  of 
directors  of  the  Paducah,  Tennessee  &  Alabama  Railroad  Com- 
pany was  held  in  the  city  of  Paducah,  Ky.,  at  4  o'clock  P.M., 
on  July  15,  1889,  all  the  directors  being  present  except  J.  L. 
Boothe;  and  said  board  of  directors  proceeded  to  organize  by 
the  election  of  officers  and  the  adoption  of   by-laws.     The  con- 


NASHVILLE,    CHATTANOOGA   <t    ST.    LOUIS   RAILWAY.         519 

solidation  of  the  Paducah  &  Tennessee  Railway  Company,  of 
the  state  of  Tennessee,  the  Paducah  &  Tennessee  Railroad 
Company,  of  the  state  of  Kentucky,  and  the  Paducah  &  Ten- 
nessee Railroad  Company,  of  the  state  of  Tennessee,  forming 
The*  Padu^ah,  Tennessee  &  Alabama  Railroad  Company,  was 
recognized,  and  said  articles  of  consolidation  ordered  spread 
upon  the  record,  the  minutes  of  which  meeting  appear  on  the 
record  book  of  said  Paducah,  Tennessee  &  Alabama  Railroad 
Company,  on  pages  45  to  60,  inclusive,  and  signed  by  T.  H. 
Puryear,  president. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed 
the  seal  of  The  Paducah,  Tennessee  &  Alabama  Railroad  Com- 
pany, this  the  seventh  day  of  July,  1891. 

[SEAL.]  J.  W.  FRISTOE, 

Sec'y  P.,  T.  tfc  A.  R.  R.  Co. 


520  LEASE,    ETC.,    RELATING    TO    PADUCAH    DIVISION 


CHAPTER  XLI. 

LEASE,  DEED,  AND  ACTS  RELATING  TO  AND  AMENDING  CHAR- 
TER OF  PADUCAH,  TENNESSEE  &  ALABAMA  RAILROAD 
COMPANY,  AND  ORIGINAL  COMPANIES  FROM 
WHICH  IT  WAS  FORMED. 

LEASE. 

[The  Paducah,  Tennessee  &  Alabama  Railroad  and  the  Tennessee 
Midland  Railroad  were  both  leased  at  the  same  time  and  in  the  same 
instrument  by  the  Louisville  &  Nashville  Railroad  Company  to  the 
Nashville,  Chattanooga  &  St.  Louis  Railway.  The  lease  contract  was 
fully  set  out  in  chapter  39  herein,  on  the  Tennessee  Midland  Railroad, 
and  will  not  again  be  copied.  Reference  is  here  made  to  it,  however.] 

ACT  KENTUCKY  IN  RELATION  TO   "PADUCAH 
&  TENNESSEE  RAILROAD  COMPANY." 

[OF    KENTUCKY.] 

[Acts  Ky.  1873,  ch.  315,  p.  394.] 

SECTION  i.  Incorporation  of  company  re-enacted.—^  it 

enacted  ly  the  General  Assembly  of  the  Commonwealth  of  Ken- 
tucky, That  an  act,  entitled  "An  act  to  incorporate  the  Padu- 
cah &  Tennessee  Railroad  Company,"  approved  March  8, 
1854,  be,  and  the  same  is  hereby,  re-enacted,  except  as  other- 
wise herein  provided. 

SEC.  2.  New  incorporators  substituted.— That  J.  M.  Big- 
ger, John  C.  Noble,  L.  S.  Trible,  P.  Palmer,  Campbell 
Parker,  J.  H.  Stroud,  John  L.  Irvan,  R.  L.  Ellison,  and 
Howell  Smith,  be,  and  they  are  hereby,  appointed  and  substi- 
tuted as  corporators,  in  lieu  of  the  persons  named  in  the  first 
section  of  said  act. 

SEC.  3.  Route  Changed. — That  the  company  be  authorized 
to  locate  and  construct  the  road  from  Paducah,  or  any  point 
on  the  Elizabethtown  &  Paducah  Railroad,  below  the  Tennes- 
see river,  to  any  point  on  the  Tennessee  state  line,  in  the 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         521 

direction  to  Paris,  or  anywhere  east  of  a  line  to  Paris,  and  its 
capital  stock  may  be  increased  to  seven  millions  of  dollars. 

The  above  section  was  repealed  by  sec.  5  of  Acts  1888,  ch.  300,  ap- 
proved February  25,  1888.  See  act  itself  in  this  chapter. 

SEC.  4.  Authority  to  change  to  narrow  gauge;  taxation.— 

That  the  company  may  make  its  road  a  narrow  gauge,  if  it 
deems  such  a  gauge  proper,  in  which  event  the  road  shall  be 
assessed  for  taxation  at  only  one  half  the  valuation  per  mile 
now  prescribed  by  law  for  ordinary  railroads,  and  the  road 
shall  not  be  assessed  or  listed  for  taxation  until  one-half  of  said 
line  l>e  put  in  operation. 

The  above  section  was  repented  by  sec.  5  of  Acts  1888,  ch.  300,  ap- 
proved February  25.  1883.  See  act  itself  herein  in  this  chapter. 

SEC.  5.   Counties  may  subscribe  for  stock,  how.— That 

before  any  county  shall  be  permitted  to  subscribe  and  hold 
stock  in  said  company,  a  majority  of  all  the  justices  of  the 
peace  in  commission  in  the  county  shall  concur  in  making  the 
order  to  submit  the  proposition  to  a  vote,  and  a  majority  of 
two-thirds  of  all  the  votes  cast  shall  l>e  cast  at  a  general  elec- 
tion in  favor  of  the  proposition  before  any  county  or  court 
shall  subscribe  stock. 

The  above  section  was  repealed  by  sec.  5,  of  Acts  1888,  ch.  300,  ap- 
proved February  25,  1888.  See  act  itself  in  this  chapter. 

SEC.  6.  Cities  and  towns  may  subscribe  for  stock,  how.— 

That  any  city  or  town  may  subscribe  and  hold  stock  in  said 
company  to  an  amount  not  exceeding  three  hundred  thousand 
dollars;  Pn/vided,  however,  That  before  such  city  or  town 
shall  be  permitted  to  subscribe  such  stock  a  majority  of  two- 
thirds  of  all  the  qualified  voters  of  such  city  or  town  shall,  at 
a  regular  city  or  town  election,  cast  their  votes  in  favor  of  the 
subscription. 

The  above  section  was  rejwtled  by  sec.  5,  of  Acts  1888,  ch.  300,  ap- 
proved February  25,  1888.  See  act  itself  in  this  chapter. 

SEC.  7.  Section  17  Of  Charter  repealed.— That  section  sev- 
enteen (17)  of  the  original  act  be,  and  the  same  is  hereby, 
repealed. 

SEC.  8.   Right  to  amend  act  reserved.— The   legislature 


522  LEASE,    ETC.,    RELATING    TO    PADUCAH    DIVISION 

hereby  reserves  the  right  to  amend,  modify  or  repeal  this  act 
at  its  discretion. 

SEC.  9.  When  act  to  take  effect.— That    this  act  take 

effect  from  its  passage. 

Acts  of  1873  (Ky.),  ch.  315,  p.  394,  approved  March  5,  1873. 

AMENDMENT  OF  CHARTER  OF  THE  PADUCAH 
&  TENNESSEE  RAILROAD  COMPANY. 

[OF  KENTUCKY.] 

[Acts  Ky.  J388,  ch.  300.] 

SECTION  i.  Route,  hold  real  estate,  condemn  land,  fran- 
chise made  perpetual. — Be  it  enacted  by  the  General  Assem- 
bly of  the  Commonwealth  of  Kentucky,  That  the  Paducah  & 
Tennessee  Railroad  Company,  as  now  organized,  shall  have 
the  right  to  build  and  operate  a  railroad  in  the  city  of  Paducah 
by  and  with  the  consent  of  the  city  council  of  said  city,  and 
county  of  McCracken,  in  the  state  of  Kentucky,  from  the 
terminus  of  any  railroad  bridge  or  transfer  that  may  be 
built  or  established  across  the  Ohio  river  in  said  county  of 
McCracken,  to  any  station  or  depot  in  the  city  of  Paducah  or 
junction  with  any  railroad  company  in  said  city,  and  may 
extend  its  line  of  road  by  single,  double  or  treble  tracks  in  a 
southeastward!}'  direction  through  the  counties  of  McCracken, 
Marshall,  and  Calloway  to  the  line  of  the  state  of  Tennessee, 
in  Calloway  county,  as  said  railroad  company  may  select.  It 
may  establish  and  construct  such  depots,  sidings,  turntables, 
shops,  transfer  landings,  and  such  other  offices  or  structures  as 
may  be  deemed  expedient  by  the  company,  and  may  purchase, 
lease  or  otherwise  acquire  real  estate  and  personal  property 
for  its  railroad  tracks,  transfer  landings,  depots,  sidings, 
shops,  offices,  and  all  other  purposes  of  said  railroad  company. 
In  the  event  it  cannot  agree  with  the  owner  for  the  purchase 
of  any  land  or  material  for  the  use  or  construction  of  said  rail- 
road, it  may  condemn  the  same  under  the  general  law  of  this 
state  for  its  purposes  and  uses.  The  franchise  of  said  Paducah 
&  Tennessee  Railroad  Company  is  hereby  made  perpetual. 


NASHVILLE,    CHATTANOOGA    <fc    ST.    LOUIS    RAILWAY.         523 

SEC.  2.  Counties,  towns,  etc.,  allowed  to  subscribe  for 

Capital  Stock,  hOW. — That  any  county,  city,  town,  civil  dis- 
trict, into  or  through  which  it  is  proposed  to  construct  said 
railroad,  or  the  Murray  common  school  district,  No.  35,  in 
Galloway  county,  may  subscribe  to  the  capital  stock  of  the 
Paducah  &  Tennessee  Railroad  Company  in  any  amount  and  on 
such  conditions  as  may  l>e  agreed  on,  not  exceeding  one  hun- 
dred thousand  dollars,  and  pay  the  same  in  the  bonds  of  such 
county,  city,  town,  civil  or  common  school  district  at  par, 
said  bonds  to  be  negotiable  in  such  sums  and  at  such  times  as 
any  county,  city,  town  or  common  school  district  may  deem 
proper,  to  bear  a  rate  of  interest  not  exceeding  six  per  centum 
per  annum,  the  interest  to  be  represented  by  coupons  attached 
to  the  bonds,  payable  semiannually  in  the  city  of  Paducah. 
The  bonds  of  any  county,  civil  or  common  school  district  to 
be  signed  by  the  county  judge  and  county  clerk,  with  seal  of 
the  county,  the  coupons  to  be  signed  by  the  clerk  alone,  with 
seal  of  the  county.  The  bonds  of  any  city  to  be  signed  by  the 
mayor  and  clerk  of  such  city,  with  seal  of  city,  the  coupons  to 
be  signed  by  the  clerk  alone,  with  seal  of  city.  The  bonds  of 
any  town  to  be  signed  by  the  chairman  of  the  trustees 
of  such  town  and  clerk,  with  seal  of  town,  and  the  cou- 
pons to  be  signed  by  clerk  alone,  with  seal  of  town. 
Said  bonds  to  be  executed  and  delivered  by  such  county, 
city,  town,  civil  or  common  school  district  upon  such 
terms  and  conditions  as  may  be  agreed  on  by  such  county, 
city,  town,  civil  or  common  school  district.  But  before 
any  such  subscription  shall  become  valid  and  binding,  if 
of  a  county,  civil  or  common  school  district,  the  county 
judge  of  any  county,  with  a  majority  of  the  justices  of 
the  peace  of  any  county,  shall  have  the  discretionary  power 
to  call  a  special  election  in  any  county,  civil  or  common  school 
district,  giving  not  less  than  fifteen  nor  more  than  sixty  days' 
notice,  at  which  election  the  legal  voters  shall  vote  for  and 
against  the  matter  of  subscription  of  stock  to  said  railroad 
company;  and  if  at  any  such  election  a  majority  of  the  qual- 
ified and  legal  voters  of  any  such  county,  civil  or  common 


524:  LEASE,    ETC.,    RELATING    TO    PADUCAH    DIVISION 

school  district,  voting  at  such  election  shall  vote  in  favor  of 
the  subscription  of  stock  to  said  railroad  company,  the  county 
judge  of  the  county  in  which  such  election  is  held  shall  make 
the  subscription  accordingly;  if  to  a  city,  the  proposition  to 
subscribe  stock  may,  in  the  discretion  of  the  council  of  any 
city,  be  submitted  by  the  council  of  such  city  on  such  terms 
and  conditions  as  may  be  agreed  on;  and  if  to  a  town,  by  the 
trustees  of  such  town  in  their  discretion;  and  if  at  such  special 
election  the  proposition  to  subscribe  stock  be  voted  for  by  a 
majority  of  the  legal  and  qualified  voters  of  such  city  voting 
at  such  special  election,  the  mayor  shall  make  the  subscription 
of  stock  to  said  railroad  company  in  the  name  of  any  such 
city;  and  if  the  proposition  to  subscribe  stock  to  said  railroad 
company  at  any  special  election  be  voted  in  favor  by  a  ma- 
jority of  the  legal  voters  of  any  such  town,  voting  at  any  such 
election,  then  the  chairman  of  the  board  of  trustees  of  any 
such  town  shall  make  the  subscription  of  stock  to  said  railroad 
company  in  the  name  of  such  town.  When  the  vote  is  by  a 
city,  the  city  council  of  such  city  shall  fix  the  time  when  any 
special  election  shall  be  held  under  this  act.  When  the  vote  is 
by  a  town,  the  trustees  of  any  such  town  shall  fix  the  time 
when  the  election  shall  be  held,  and  when  the  vote  is  by  a 
county,  civil  district  or  the  common  school  district,  the  county 
judge  of  the  county  in  which  the  election  is  proposed  to  be 
held  shall  fix  the  time  when  such  election  shall  be  held,  and 
the  officers  authorized  by  law  to  compare  polls  in  county  elec- 
tions shall  count  and  certify  the  result  of  any  and  all  elections 
under  this  act.  When  the  vote  is  by  a  city,  the  officers 
authorized  by  law  to  compare  the  polls  in  election  for  city 
officers  shaH  count  and  certify  the  result  of  all  elections  under 
this  act,  and  when  such  vote  is  by  a  town,  the  trustees  of  any 
such  town  shall  count  and  certify  the  result  of  any  and  all 
elections  under  this  act.  In  case  any  county  shall  subscribe 
to  the  capital  stock  of  said  railroad  company  under  this  act,  it 
is  made  the  duty  of  the  county  court  of  such  county  so  sub- 
scribing to  levy  annually  a  tax  on  the  taxpayers  of  the  county, 
on  all  property  liable  to  taxation  under  the  revenues  laws  of 


NASHVILLE,    CHATTANOOGA    <fc    ST.    LOUIS    RAILWAY.         525 

this  state,  sufficient  to  pay  the  interest  on  the  bonds  as  the 
same  matures,  with  the  costs  of  collecting  the  same,  and  to 
appoint  a  collector  and  have  the  said  tax  collected  and  applied 
to  the  payment  of  the  interest  on  such  bonds,  and  when  the 
bonds  of  the  county  become  due  and  payable,  in  like  manner 
to  levy  and  have  collected  a  tax  to  pay  said  bonds  and  cost  of 
collecting  said  tax.  If  any  civil  district  in  any  county  shall 
subscribe  to  the  capital  stock  of  said  railroad  company,  then 
the  county  court  in  which  such  subscription  is  made  by  any 
civil  district  shall  make  a  like  levy  and  have  it  collected  and 
paid,  but  it  shall  be  confined  to  the  taxpayers  and  proj)erty 
within  such  civil  district.  In  the  event  Murray  common 
school  district,  No.  35,  in  Calloway  county,  subscribes  to  the 
capital  stock  of  said  railroad  company  the  county  court  of  Cal- 
loway county  will  make  a  like  levy,  appoint  a  collector,  and 
have  such  tax  collected,  but  will  confine  it  to  the  taxpayers  and 
taxable  property  in  said  district.  In  the  event  any  city  sub- 
scribes to  the  capital  stock  of  said  railroad  company  under  this 
act,  the  council  of  such  city  shall  levy  and  have  collected  from 
the  taxpayers  and  taxable  property  of  such  city  a  like  tax.  In 
the  event  any  town  subscribes  to  the  capital  stock  of  said  rail- 
road company  under  this  act,  then  the  trustees  of  any  such 
town  are  required  to  levy,  appoint  a  collector,  and  collect 
from  the  taxpayers  and  taxable  property  of  any  such  town  a 
like  tax  and  for  a  like  purpose,  which  shall  be  by  them  so 
applied  after  paying  interest  on  the  bonds  of  any  county,  civil 
district  or  the  Murray  common  school  district,  No.  35,  of  Cal- 
loway county,  or  any  city  or  town,  there  shall  remain  a  sur- 
plus in  the  hands  of  the  collector  for  any  one  or  more  years,  it 
is  hereby  made  the  duty  of  the  county  judge  of  any  county, 
the  council  of  any  city,  or  the  trustees  of  any  town,  to  apply 
such  surplus  to  the  payment  of  any  outstanding  bonds  of 
any  such  county,  civil,  Murray  common  school  district,  No. 
35,  city  or  town.  All  elections  under  this  act  shall  be  held  at 
the  voting  places  fixed  by  law  in  any  county,  city,  town,  and 
in  Murray  common  school  district,  No.  35,  in  the  town  of 
Murray,  and  when  in  any  civil  district  in  any  county  the  place 


526  LEASE,    ETC..    RELATING    TO    PADUCAH    DIVISION 

for  holding  any  election  under  this  act  shall  be  fixed  by  the 
county  judge  of  the  county  in  which  such  special  election  is 
proposed  to  be  held;  Provided,  That  no  bonds  for  subscrip- 
tion of  stock  shall  be  issued  under  this  act  until  the  railroad 
is  completed  and  operated  through  the  county,  city,  town  or 
civil  district  voting  such  stock  subscription  to  said  railroad. 

SEC.  3.  Capital  stock  increased,  consolidation  with  other 
roads  allowed;  may  receive  gifts. — That  the  capital  stock  of 

the  Paducah  &  Tennessee  Railroad  Company  is  fixed  at  three 
millions  of  dollars  with  power  on  the  part  of  its  directors  to 
increase  or  reduce  the  same  to  the  actual  amount  expended  in 
its  construction  and  equipment.  It  may  unite,  consolidate  or 
make  running  arrangements  with  any  other  railroad  within  or 
without  the  state.  It  may  receive  gifts  or  donations  of  right 
of  way  or  of  any  other  thing  necessary  or  useful  in  the  con- 
struction and  operation  of  its  road  or  branches,  and  it  shall 
have  all  the  powers  necessary,  convenient  or  proper  to  carry 
into  effect  the  construction  and  operation  of  its  said  road  under 
powers  herein  granted.  • 

SEC.  4.  May  borrow  money,  issue  bonds,  mortgages,  in- 
dorse bonds  of  counties,  cities,  etc.;  other  roads  may  indorse 

its  bonds. — That  the  Paducah  &  Tennessee  Railroad  Company 
is  authorized  to  borrow  any  amount  of  money  not  exceeding 
three  millions  of  dollars,  and  to  execute  the  bonds  of  the  rail- 
road company  for  any  such  loans  in  such  amounts  and  at  such 
times  as  may  be  agreed  on  by  said  company;  and  the  person 
or  persons  loaning  the  same,  bearing  any  rate  of  interest  not 
exceeding  six  per  centum  per  annum;  with  coupons  attached  to 
represent  the  interest  on  said  bonds  to  be  paid  semiannually, 
and  the  bonds  and  coupons  to  be  made  payable  at  some  bank- 
ing house  or  trust  company  in  the  city  of  New  York,  to  be 
agreed  on  and  printed  or  written  on  the  face  of  the  bonds  and 
coupons.  To  secure  the  payment  of  such  bonds  with  coupons 
as  said  railroad  company  may  issue,  it  may  execute  and  deliver 
a  deed  of  trust  on  all  its  property,  rights,  and  franchises  in 
and  out  of  this  state.  Said  railroad  company  may  indorse  the 
bonds  of  any  county,  city,  town,  civil  or  common  school  dis- 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         527 

trict  issued  in  aid  of  its  construction,  and  it  may  make 
arrangements  with  any  railroad  company  in  or  out  of  the  state 
of  Kentucky  to  indorse  or  guarantee  the  payment  of  any 
bonds  with  coupons  that  it  may  issue  in  its  construction, 
equipment  or  operation. 

SEC.  5.  Sections  of  other  acts  repealed.— That  sees.   11 

and  1(5  of  the  act  of  March  8,  1854,  entitled  "Act  to  incorpo- 
rate the  Paducah  &  Tennessee  Railroad  Company "  and 
sees.  3,  4,  5,  and  6  of  an  act  approved  March  5,  1873,  en- 
titled "An  act  to  re-enact  and  amend  the  charter  of  the  Padu- 
cah &  Tennessee  Railroad  Company,"  with  all  parts  of  said 
original  and  amended  acts  inconsistent  or  in  conflict  with  this 
amendment  are  hereby  repealed. 

SEC.  6.  Counties,  towns,  etc.,  authorized  to  create  sinking 

fund  tO  pay  bonds  Subscribed.— The  county  court  of  any 
county,  civil  or  common  school  district,  council  of  any  city  or 
trustees  of  any  town,  may  also  levy  and  have  collected  a  tax 
to  create  a  sinking  fund  with  which  to  pay  any  bond  sub- 
scribed by  any  such  county,  civil  or  common  school  district 
under  this  act,  before  the  same  matures.  Before  any  question 
to  subscribe  stock  under  this  act  is  voted  on,  the  railroad 
company  shall  deposit  a  sum  of  money  to  pay  the  legal  costs 
of  holding  the  election;  Provided^  That  the  work  of  construct- 
ng  said  railroad  shall  commence  in  two  years  and  the  road 
completed  in  five  years  from  the  passage  of  this  act. 

SEC.  7.  This  act  shall  take  effect  and  be  in  force  from  its 
passage. 

Approved  February  25,  1888. 

CONSOLIDATION    OF    THE   THREE   COMPANIES 
APPROVED  AND  CONFIRMED. 

[Acts  Ky.  1892,  ch.  85,  p.  211.] 

Preamble.— WHEKEAS,  The  Paducah  &  Tennessee  Railroad 
Company,  a  corporation  chartered  by  various  acts  of  the 
general  assembly  of  this  commonwealth  as  follows,  to-wit:  By 
an  act  approved  March  8,  1854,  and  by  an  amendatory  act 
approved  March  5,  ]873,  ami  by  a  further  amendatory  act 


528  LEASE,    ETC.,    RELATING    TO    PADUCAH    DIVISION 

approved  February  25,  1888,  was,  by  the  third  section  of  the 
last  named  act,  duly  authorized  to  "unite,  consolidate  or 
make  running  arrangements  with  any  other  railroad  within  or 
without  this  state;"  and 

WHEREAS,  On  the  fifteenth  day  of  July,  1889,  said  Paducah 
&  Tennessee  Railroad  Company  did  consolidate  with  the 
Paducah  &  Tennessee  Railway  Company  and  the  Paducah  & 
Tennessee  Railroad  Company,  the  last  two  named  being  at  the 
time  corporations  of  the  state  of  Tennessee,  whose  lines  of 
railroad  connected  at  the  state  line,  between  the  states  of 
Kentucky  and  Tennessee,  with  the  line  of  the  said  Paducah  & 
Tennessee  Railroad  Company  so  incorporated  in  this  state,  so 
as  to  form  a  continuous  line  running  in  a  general  southeasterly 
direction  from  the  city  of  Pa'ducah;  and 

WHEREAS,  Said  consolidated  company,  so  made  by  said  con- 
solidation, did  assume  for  such  consolidated  company  the  name 
of  "The  Paducah,  Tennessee  &  Alabama  Railroad  Company," 
and  in  such  name  has  constructed,  and  is  now  and  has  been 
operating  and  maintaining  its  said  railroad,  from  the  city  of 
Paducah  through  the  counties  of  McCracken,  Marshall  and 
Galloway,  in  this  state,  and  into  the  state  of  Tennessee;  there- 
fore, 

SECTION  i.  Consolidation  of  companies  approved  and  con- 
firmed.— Be  it  enacted  l>y  the  General  Assembly  of  the  Com- 
monwealth of  Kentucky,  That  the  consolidation  of  the  Paducah 
&  Tennessee  Railroad  Company  with  the  Paducah  &  Tennessee 
Railway  Company  and  the  Paducah  &  Tennessee  Railroad  Com- 
pany— the  last  named  two  corporations  in  the  State  of  Tennes- 
see— under  the  name  of  the  Paducah,  Tennessee  and  Alabama 
Railroad  Company,  which  consolidation  was  made  and  had  on 
the  fifteenth  day  of  July,  one  thousand  eight  hundred  and 
eighty-nine,  be,  and  the  same  is  hereby,  approved,  ratified, 
and  confirmed. 

SEC.  2.  Articles  of  agreement  to  be  filed  with  secretary  of 

State. — That  a  copy  of  the  articles  of  agreement  and  consol- 
idation as  aforesaid  of  said  companies,  duly  certified  by  the 
president  of  such  consolidated  company,  and  attested  by  the 


NASHVILLE,    CHATTANOOGA   A   ST.    LOUIS    RAILWAY.         529 

secretary  thereof,  under  its  corporate  seal,  be  filed  with  the 
secretary  of  state,  and  lodged  as  a  part  of  the  records  of  his 
office,  within  ninety  days  from  the  date  this  act  shall  take 
effect. 

SEC.  3.  When  act  tO  take  effect.— That  no  general  law  has 
been  or  can  be  enacted  which  will  be  applicable  to  this  case,  and 
the  courts  have  no  jurisdiction  to  grant  the  relief  asked  for,  and 
the  corj>orate  existence  of  these  consolidated  companies  being 
questioned,  and  their  rights  interfered  with,  and  especially  the 
right  of  said  company  to  exercise  the  right  of  eminent  domain 
for  the  purpose  of  its  tracks  and  depot  grounds;  therefore,  an 
emergency  is  hereby  declared  to  exist,  and  this  act  shall  take 
effect  from  and  after  its  approval  by  the  governor. 

(Became  a  law  August  6,  1892,  the  Governor  not  having  signed  or 
returned  the  same  to  the  house  in  which  it  originated  within  the  time 
prescribed  by  law.) 

Acts  of  1891-92-93  (Ky.),  ch.  85,  p.  311. 

DEED. 

J.  W.  PHILLIPS  AND  WIFE,  ) 

TO 
L.  &  N.  R.  R.  Co. 

This  indenture  made  and  entered  into  by  and  between  J. 
W.  Phillips  and  Nora  A.  Phillips,  his  wife,  who  joins  herein 
as  party  of  the  first  part,  for  the  purpose  of  releasing  all  claim 
to  dower  in  any  of  the  hereinafter  described  property,  as  par- 
ties of  the  first  part,  and  The  Louisville  &  Nashville  Railroad 
Company,  a  corporation  organized  and  existing  under  and  by 
virtue  of  the  laws  of  the  state  of  Kentucky,  party  of  the 
second  part— 

Witnesseth:  That,  in  consideration  of  the  sum  of  one  million 
six  hundred  and  one   thousand  two   hundred   and    thirty- five 
dollars  ($1,601,235),  being  at  the  rate  of  thirteen 
thousand  and  five  hundred  dollars  ($13,500)  per 
mile  of  the  line  of  railroad  formerly  of  the  Paducah,  Tennes- 
see &  Alabama  Railroad  Company,  cash  in  hand,  paid  by  the 
party  of   the    second    part,    the    receipt   whereof    is    hereby 
acknowledged,  the  parties  of  the  first  part  doth  hereby  grant, 

34 


530  LEASE,    ETC.,    RELATING    TO    PADUCAH    DIVISION 

bargain,  sell,  assign,  transfer,  and  convey  unto  the  said  party 
of  the  second  part,  its  successors  and  assigns,  all  and  singular, 
the  railroad  and  property  formerly  of  the  Paducah,  Tennessee 
&  Alabama  Railroad  Company,  and  described  as  follows: 

Extending;  from  within  the  citv  of  Paducah,  in  the  State  of 

•> 

Kentucky,  and  running  thence  in  a  southerly  direction  through 
Description  of  ^ne  counties  of  McCracken,  Graves,  Marshall,  and 
property  sold.  Calloway,  in  the  State  of  Kentucky,  and  thence 
through  the  counties  of  Henry,  Carroll,  and  Henderson,  in  the 
State  of  Tennessee,  to  a  junction  with  the  Tennessee  Midland 
Railway  Company  at  or  near  the  town  of  Lexington,  in  said 
county  of  Henderson;  and,  also,  all  its  lands,  tenements,  and 
hereditaments,  its  extensions,  side  tracks,  spur  tracks,  and 
franchises,  and  all  the  easements  and  appurtenances  thereunto 
belonging  or  anywise  appertaining;  also,  all  its  railroad,  ways, 
and  rights  of  way,  its  depot  grounds,  tracks,  bridges,  viaducts, 
culverts,  and  other  structures,  its  depots,  stationhouses,  engine- 
houses,  carhouses,  freighthouses,  woodhouses,  warehouses, 
machineshops,  workshops,  superstructures,  and  fixtures;  also, 
all  its  locomotives,  tenders,  cars,  rolling  stock,  and  other 
equipments;  also,  all  its  rails,  ties,  chairs,  machinery,  tools, 
implements,  fuel,  and  all  materials  whatsoever  used  for  or  in 
respect  to  constructing,  operating,  repairing,  or  replacing  the 
said  railroad  or  any  part  thereof;  together  with  all  the  equip- 
ments and  appurtenances  whatsoever  belonging  to  any  of  the 
aforementioned  property;  and,  also,  all  the  franchises  con- 
nected with  or  relating  to  the  said  railroad,  its  extensions,  and 
Franchises  branches,  all  its  property  and  corporate  franchises, 
etc., pass.  including  its  franchise  to  be  a  corporation;  together 
with,  all  and  singular,  the  tenements,  hereditaments,  and  ap- 
purtenances of  said  railroad,  except  its  books  of  account  and 
choses  in  action  and  money  on  hand,  including  and  intending 
to  include  all  the  property  of  said  railroad  company  which  was 
directed  to  be  sold  by  the  final  decrees  of  forclosure  and  sale 
entered  on  the  tenth  day  of  July.  1895,  by  the  circuit  court  of 
the  United  States  for  the  district  of  Kentucky,  at  Paducah, 
and  on  the  eleventh  day  of  July,  1895,  by  the  circuit  court  of 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         531 

the  United  States  for  the  eastern  division  of  the  western  dis- 
trict of  Tennessee,  at  Jackson,  in  the  case  of  St.  Louis  Trust 
Company,  complainant,  against  the  Paducah,  Tennessee  & 
Alabama  Railroad  Company,  defendant,  and  which  was  sold, 
under  said  decrees,  by  A.  B.  Lamb  and  J.  R.  Puryear,  special 
masters  appointed  by  said  decrees,  to  J.  W.  Phillips,  one  of 
the  parties  of  the  first  part  hereto,  on  the  eighteenth  day  of 
October,  1895,  and  which  said  sale  was  duly  continued  by  said 
courts  by  orders  entered  in  said  cause,  bearing  dates,  respect- 
ively, the  twenty -eighth  day  of  October,  1895,  and  the  twenty- 
ninth  day  of  November,  1895,  and  being  the  same  property 
heretofore  conveyed,  by  virtue  of  said  sale  and  the  confirma- 
tions thereof,  to  said  J.  W.  Phillips,  one  of  the  parties  of  the 
first  part  hereto,  by  said  A.  B.  Lamb  and  J.  R.  Puryear, 
special  masters,  by  their  deed,  bearing  date  the  thirteenth  day 
of  December,  1895,  and  by  the  Paducah,  Tennessee  &  Alabama 
Railroad  Company,  by  its  quit-claim  deed  to  said  J.  W.  Phil- 
lips, bearing  date  the  thirteenth  day  of  December,  1895,  and 
by  William  L.  Huse  and  John  Overton,  Jr.,  receivers  of  said 
railroad  and  property,  by  their  deed  to  said  J.  W.  Phillips, 
bearing  date  the  fourteenth  day  of  December,  1895,  including 
herein  and  intending  to  include  in  this  conveyance  all  of  the 
property  acquired  by  said  J.  W.  Phillips  as  aforesaid,  includ- 
ing all  of  the  property  acquired  on  behalf  of  said  railroad 
company  from  William  L.  Huse  and  John  Overton,  Jr.,  as 
receivers  thereof,  except  the  books,  accounts,  choses  in  action, 
and  cash  above  referred  to. 

To  have  and  to  hold  unto  the  said  Louisville  &  Nashville 
Railroad  Company,  and  to  its  successors  and  assigns  in  fee 
simple,  absolute  and  forever,  together  with  all  the  rights, 
privileges  and  franchises  appertaining  thereto  as  fully  and  com- 
pletely as  said  J.  W.  Phillips,  one  of  the  parties  of  the  first 
part,  hereto  holds  or  enjoys  or  is  entitled  to  hold  and  enjoy  the 
same  by  virtue  of  the  said  conveyance  to  him  by  said  A.  B. 
Lamb  and  J.  R.  Puryear,  special  masters  as  aforesaid,  and  by 
virtue  of  the  conveyance  to  him  by  the  Paducah,  Tennessee  & 
Alabama  Railroad  Company,  as  aforesaid,  and  by  virtue  of  the 


532  LEASE,    ETC.,    RELATING    TO    PADUCAH    DIVISION 

conveyance  to  him  by  William  L.  Huse  and  John  Overton,  Jr. , 
receivers  as  aforesaid,  but  subject  to  all  the  conditions,  limita- 
tions, and  restrictions  imposed  on  the  said  railroad  and  property 
herein  conveyed  and  the  purchaser  thereof  or  his  assigns  by 
the  final  decrees  of  foreclosure  and  sale  made  and  entered  by 
the  said  United  States  circuit  courts  for  the  district  of  Kentucky 
at  Paducah  and  for  the  eastern  division  of  the  western  district 
of  Tennessee  at  Jackson,  in  the  case  of  St.  Louis  Trust  Com- 
pany, complainant,  against  the  Paducah,  Tennessee  &  Alabama 
Railroad  Company,  defendant,  hereinbefore  referred  to.  And 
reference  is  hereby  made  to  the  said  final  decrees  of  foreclosure 
and  sale  and  to  the  orders  confirming  said  sale  entered  in  said 
cause  and  to  the  said  deeds  of  A.  B.  Lamb  and  J.  R.  Puryear, 
special  masters,  and  the  Paducah,  Tennessee  &  Alabama  Rail- 
road Company,  and  William  L.  Huse  and  John  Overton,  Jr., 
receivers,  executed  and  delivered  as  aforesaid  to  said  J.  W. 
Phillips,  one  of  the  parties  of  the  first  part,  for  further  and  full 
particulars  in  respect  both  to  the  property  herein  conveyed  and 
to  the  conditions,  limitations  and  restrictions  thereon  and  on 
the  said  purchaser  thereof  imposed. 

And  the  said  J.  W.  Phillips,  one  of  the  parties  of  the  first 

part  hereto,  hereby  covenants  with  the  party  of  the  second  part 

that  he  will  warrant  and  forever  defend  the  title  to 

all  and  singular  the  property  hereinbefore  conveyed 

to  the  party  of  the  second  part,  its  successors  and   assigns, 

against  the  lawful  claims  of  all  persons  claiming  or  to  claim 

the  same  or  any  part  thereof,  by,  through,  or  under  him;  but 

no  further  or  otherwise. 

In  witness  whereof,  the  parties  of  the  first  part  have  here- 
unto set  their  hands  and  seals,  this,  the  fourteenth  day  of 
December,  1895. 

[SEAL.]  J.  W.  PHILLIPS. 

[SEAL.]  NORA  A.  PHILLIPS. 

STATE  OF  MISSOURI,    ) 

City  of  St.  Louis,      j 

I,  Charles  H.  Anderson,  notary  public  for  the  city  and  state 
aforesaid,  do  hereby  certify  that  the  foregoing  instrument  of 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         533 

writing  from  J.  W.  Phillips  and  wife,  Nora  A.  Phillips,  was 
this  day  produced  to  me  by  the  parties,  with  whom  I  am  per- 
sonally acquainted,  and  which  was  acknowledged  by  the  said 
J.  W.  Phillips  to  be  his  act  and  deed,  and  that  he  executed  the 
same  for  the  purposes  therein  contained;  and  the  contents  and 
effect  of  the  instrument  being  explained  to  the  said  Nora  A. 
Phillips  by  me,  separately  and  apart  from  her  husband,  she 
thereupon  declared  that  she  did  freely  and  voluntarily  execute 
and  deliver  the  same,  to  be  her  act  and  deed,  and  consented 
that  the  same  might  be  recorded. 

Given  under  my  hand  and  seal  of  office,  this  fourteenth  day 
of  December,  1895.  My  term  expires  on  the  fourteenth  day 
of  November,  1897.  CHARLES  H.  ANDERSON, 

Notary  Public,  City  of  St.  Louis,  Mo. 

The  above  deed  was  properly  registered  in  the  register's  office  of 
Henry  county,  Tenn.,  July  31,  1896,  in  book  4,  pp.  502-505;  in  Carroll 
county,  Tenn.,  August  11,  1896,  in  book  14,  p.  559;  in  Henderson  county, 
Tenn.,  August  17,  1896,  in  book  15,  pp.  106-109;  in  McCracken  county, 
Ky.,  July  30,  1896,  in  book  51,  p.  235;  in  Graves  county,  Ky.,  July  29, 
1896,  in  book  15,  p.  391;  in  Marshall  county,  Ky.,  August  4,  1896,  in  book 
24,  p.  293-297;  in  Calloway  county,  Ky.,  August  5,  1896,  in  book  8,  p.  59. 


CHAPTER  XLII. 

LEASES  BY  NASHVILLE  CHATTANOOGA  &  ST.  LOUIS  RAILWAY 
TO    LOUISVILLE  &  NASHVILLE  RAILROAD   COMPANY  OF 
TRACKS  FROM  LOUISVILLE    A  NASHVILLE  RAIL- 
ROAD COMPANY'S  OLD  DEPOT  IN  NASHVILLE 
TO  DECATUR  DEPOT  IN  NASHVILLE. 

N.  C.  &  ST.  L.  RY.,  j 

TO  >  Original  Lease. 

L.  &  N.  R.  R.  Co.     ) 

Preamble. — This  agreement  witnesseth:  That,  for  the  pur- 
pose  of  making  closer  connections,  and  of  affording  greater 
facilities  for  trude  and  travel,  the  Nashville  &  Chattanooga  Rail- 


534         LEASES  OF  CERTAIN  NASHVILLE  TRACKS. 

road  Company  and  the  Louisville  &  Nashville  Railroad  Com- 
pany have  made  the  following  contract,  to  wit: 

1.  Name  changed.     The  corporate  name  was  changed  to  the  Nash- 
ville Chattanooga  &   St.    Louis   Railway   May   30,    1873,   by  decree  of 
chancery  court  at  Nashville  under  Acts  Tenn.,  1870-1,  ch.  54,  p.  63.     See 
Minute  Book  "X,'1  pp.  22')-2.     See  also  decree  itself  in  this  compilation, 
p.  25. 

2.  Agreement  modified.     This  agreement  was  subsequently  modified 
on  July  1,  1896.     The  modification  instrument  is  fully  set  out  further  on 
in  this  chapter,   and  to  which   reference  is  here  made  for  the  terms 
thereof. 

3.  Lease  to  Louisville  &  Nashville  Terminal  Company. — The  rail- 
road tracks  conveyed  in  this  lease  were  subsequently,  on  April  27,  1896, 
subleased  by  the  Louisville  &  Nashville  Railroad  Company  to  the  Louis- 
ville &  Nashville  Terminal  Company,  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  joining  therein.    This  lease  was  registered  in  the  register's 
office  of  Davidson  county,  Tenn,,  book  221,  p.  175,  and  may  be  found 
further  on  in  this  compilation.     The  Nashville,  Chattanooga  &  St.  Louis 
Railway  also  executed  a  lease  to  the  Terminal  Company  of  certain 
tracks,  which  lease  was  registered  in  the  register's  office  of  Davidson 
county,  book  220,  p.  175,  to  which  the  Louisville  &  Nashville  Railroad 
Company  also  subscribed  on  account  of  this  agreement. 

4.  Terminal  company  subleases  tracks  to  Nashville,  Chattanooga 
&St.  Louis  Railway  and  Louisville  &  Nashville  Railroad  Company. — 
Subsequently,  on   June  15,  1896,  the  Louisville  &  Nashville  Terminal 
Company  leased  certain  portions  of  the  tracks,  together  with  various 
other  properties,  back  to  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way and  the  Louisville  &   Nashville  Railroad  Company  jointly.     This 
lease  is  registered  in  the  register's  office  of  Davidson  county,  book  222, 
p.  175.     It  is,  also,  fully  set  out  herein.     See  chapter  XLV1II. 

1.  Description  Of  tracks  leased.— The  Nashville  &  Chatta- 
nooga Railroad  Company  agrees  to  give  and  guarantee  to  the 
Louisville  &  Nashville  Railroad  Company  the  right  of  way 
upon  and  perpetual  use  of  the  railroad  tracks  extending  from 
the  present  depot  of  the  Louisville  &  Nashville  Railroad  Com- 
pany at  College  street,  Nashville,  to  the  depot  grounds  of  the 
Nashville  &  Decatur  Railroad  Company,  Nashville,  for  the 
purpose  of  running  thereon  passenger  and  freight  trains  and 
engines,  as  the  same  may  be  necessary,  between  said  depot  at 
College  street  and  said  depot  of  the  Nashville  &  Decatur  Rail- 
road and  between  each  of  said  depots  and  the  union  passenger 
depot.  Said  connecting  tracks  between  the  Louisville  &  Nash- 
ville Railroad  depot  and  the  Nashville  &  Decatur  Railroad 


NASHVILLE,    CHATTANOOGA   A   ST.    LOUIS    RAILWAY.         586 

depot  is  to  run  over  part  of  the  trestle  connecting  at  present 
the  Louisville  &  Nashville  Railroad  with  the  Nashville  & 
Northwestern  Railroad,  and  over  a  trestle  or  roadway  to  be 
constructed  between  the  first  named  trestle  and  the  Nashville  & 
Chattanooga  Railroad  dei>ot,  as  hereinafter  mentioned  in  this 
contract,  and  then  through  the  depot  grounds  of  the  Nashville 
&  Chattanooga  Railroad  to  the  south  end  of  the  southern 
approach  cut  of  the  tunnel,  and  then  alongside  of  the  main 
•track  of  the  Nashville  &  Chattanooga  Railroad,  as  hereinafter 
mentioned,  to  the  Nashville  &  Decatur  Railroad  depot. 

This  depot  was  at  the  intersection  of  the  Louisville  &  Nashville  Rail- 
road Company's  tracks  and  College  street  in  Nashville,  Tenn..  and  was, 
also,  known  as  "  Linck's  depot."  Work  is  now  in  progress  on  anew 
depot,  by  the  Louisville  &  Nashville  Terminal  Company,  which  depot, 
when  finished,  will  be  used  by  both  the  Louisville  &  Nashville  Railroad 
Company  and  the  Nashville,  Chattanooga  &  St.  Louis  Railway.  The 
depot  is  being  erected  on  the  south  side  of  Broad  street. 

2.  Connecting  track   between  trestle  of  Northwestern 
branch  and  Chattanooga  depot  provided  for.— The  Louisville 

&  Nashville  Railroad  Company  agrees  to  pay  for  the  right  of 
way  sufficient  for  a  connecting  railroad  track,  to  be  built  on 
trestles,  and  to  construct  in  a  first-class  manner  said  trestles, 
and  place  thereon  first-class  railroad  iron  of  fishbar  pattern, 
from  the  trestle  of  the  Nashville  &  Northwestern  Railroad  to 
the  depot  ground  of  the  Nashville  &  Chattanooga  Railroad 
Company;  and  said  trestle  and  right  of  way  thereafter  to  be 
the  property  of  the  Nashville  &  Chattanooga  Railroad,  and  the 
whole  of  the  trestle  and  track  connecting  the  Louisville  & 
Nashville  Railroad  depot  with  the  Nashville  &  Chattanooga 
Railroad  depot  to  be  kept  in  good  repair  at  all  times  by  the 
Nashville  &  Chattanooga  Railroad  Company  for  the  uninter- 
rupted use  as  required  by  the  business  of  the  Louisville  & 
Nashville  Railroad  Company  and  the  Nashville  &  Decatur 
Railroad  Company. 

3.  Connecting  track  between  Broad  street  tunnel  and  De- 
catur depot  provided  for. — The  Louisville  &  Nashville  Rail- 
road Company  agrees  to  lay,  at  its  own  ex|>ense,  the  Nashville 
&  Chattanooga  Railroad  Company  furnishing  and  guaranteeing 


536         LEASES  OF  CERTAIN  NASHVILLE  TRACKS. 

the  right  of  way  for  the  same,  a  railroad  track  from  the  south 
end  of  the  southern  approach  cut  of  the  tunnel  on  the  Nash- 
ville &  Chattanooga  Railroad  at  Nashville,  and  upon  the 
present  grade  of  said  railroad,  to  the  depot  grounds  of  the 
Nashville  &  Decatur  Railroad  Company,  for  the  exclusive  use 
of  the  Louisville  &  Nashville  Railroad  Company  and  the  Nash- 
ville &  Decatur  Railroad  Company,  to  be  kept  in  repair  by  the 
Louisville  &  Nashville  Railroad  Company;  and  the  Nashville  & 
Chattanooga  Railroad  Company  covenants  that  such  track 
may  be  used  as  aforesaid  during  the  existence  of  said  com- 
pany. But,  for  the  present,  and  until  the  Nashville  &  Chat- 
tanooga Railroad  Company  is  prepared  to  offer  such  right  of 
way,  it  is  understood  that  the  free  use  of  the  present  track  of 
the  Nashville  &  Chattanooga  Railroad,  between  the  south  end 
of  the  tunnel  and  the  depot  of  the  Nashville  &  Decatur  Rail- 
road, is  to  be  given,  instead  of  a  separate  track,  for  the 
passage  of  trains  belonging  to  the  Nashville  &  Decatur  and 
the  Louisville  &  Nashville  Railroad  Company,  the  running  of 
which,  however,  is  to  be  subject  to  the  orders  of  the  superin- 
tendent of  the  Nashville  &  Chattanooga  Railroad,  but  without 
delay  to  the  business  of  said  railroad  companies. 

4.  Union  depot  provided  for. — The  Louisville  &  Nashville 
Railroad  Company  agrees  to  pay  toward  the  erection  of  a  suit- 
able union  passenger  depot  building,  on  the  present  depot 
grounds  of  the  Nashville  &  Chattanooga  Railroad  Company, 
fifty  thousand  dollars  ($50,000),  whenever  the  Nashville  &  Chat- 
tanooga Railroad  Company  shall  contribute  the  same  amount 
for  said  purpose  and  proceed  to  erect  said  depot,  the  sum  of  fifty 
thousand  dollars  ($50,000)  to  be  paid  by  each  party  as  the 
same  may  be  necessary  to  be  used  in  payment  for  the  building 
of  said  depot,  and  the  Louisville  &  Nashville  Railroad  Com- 
pany and  the  Nashville  &  Decatur  Railroad  Company  are  to 
have  the  free  and  perpetual  and  necessary  accommodations  for 
their  passenger  business  in  and  about  said  depot,  without  let 
or  hindrance  from  the  Nashville  &  Chattanooga  Railroad  Com- 
pany or  other  parties  to  whom  the  said  Nashville  &  Chatta- 
nooga Railroad  Company  may  give  the  right  to  use  said  depot; 


NASHVILLE,    CHATTANOOGA   4    ST.    LOUIS    RAILWAY.         537 

and  the  said  Louisville  &  Nashville  Railroad  Company  shall 
have  the  right  to  select  the  track  in  and  about  said  depot,  for 
the  use  of  its  passenger  trains,  in  preference  to  any  other 
company,  except  the  Nashville  &  Chattanooga  Railroad  Com- 
pany, using  the  depot,  and  the  Nashville  &  Chattanooga 
Railroad  Company  is  to  keep  the  depot  building,  tracks, 
necessary  fixtures,  and  furniture  used  for  the  accommodation 
of  the  passenger  business,  in  good  repair.  The  expenses  of 
lighting  said  building  are  to  be  borne  equitably  by  the  parties 
to  this  contract. 

The  union  depot  provided  for  above  will  now  doubtless  never  be  built, 
as  the  Louisville  &  Nashville  Terminal  Company  is,  at  this  writing,  erect- 
ing a  magnificent  depot  on  the  south  side  of  Broad  street,  which,  when 
finished,  will  be  used  by  both  the  Louisville  «fe  Nashville  Railroad  Com- 
pany and  the  Nashville,  Chattanooga  &  St.  Louis  Railway. 

5.  Lease  not  exclusive  between  Louisville  &  Nashville  Rail- 
road Company  depot  and  Chattanooga  depot.— it  is  agreed  by 

the  parties  hereto  that  the  Nashville  &  Chattanooga  Railroad 
Company  may  permit  other  railroad  companies  to  use  the  con- 
necting trestle  and  tracks  between  the  Louisville  &  Nashville 
Railroad  depot  and  the  depot  of  the  Nashville  &  Chattanooga 
Railroad  Company,  and  also  the  union  passenger  depot,  upon 
terms  to  be  agreed  upon  between  such  other  companies  and 
the  Nashville  &  Chattanooga  Railroad  Company;  Provided, 
That  such  permit  to  use  or  the  use  thereof  shall  not  hinder, 
delay  or  interfere  with  the  free  and  prompt  transaction  of  the 
business  of  the  Louisville  &  Nashville  Railroad  Company  over 
said  trestle  or  connecting  track  and  the  union  passenger  depot. 

6.  Rental. — In  consideration  of  the  above  stipulations,  and 
upon  compliance  with  the  same  by  the  Nashville  &  Chattanooga 
Railroad  Company,  the  Louisville  &  Nashville  Railroad  Com- 
pany agrees  to  pay  to  the  Nashville  &  Chattanooga  Railroad 
Company,    eighteen    thousand    dollars  ($18,000)    per   annum, 
in    monthly    payments   of    fifteen    hundred    dollars    ($1,500) 
from  and  after  the  commencement  of  the  use  of  said  connect- 
ing track  between  the  depot  of  the  Louisville  &  Nashville  Rail- 
road Company  and  the  depot  of  the  Nashville  &  Decatur  Rail- 
road Company. 


538         LEASES  OF  CERTAIN  NASHVILLE  TRACKS. 

7.  Arbitration  provided  for. — In  the  event  of   any  contro- 
versy or  dispute  by  the  parties  as  to  their  rights  under  it,   or 
as  to  the  performance  of  the  stipulations  of  this  contract,  the 
same  is  to  be  settled  by  arbitration  and  the  decision  of  three 
disinterested  railroad  experts,  one  to  be  selected  by  each  party, 
and  the  other  by  the  two  first  selected. 

8.  Right  Of  way  provided  for. — It  is  understood  that  the 
Nashville  &  Chattanooga  Railroad  Company  is  the  legal  owner 
of  the  Nashville  &  Northwestern  Railroad  by  purchase.     But 
it  is  further  understood  that  the  Nashville  &  Chattanooga  Rail- 
road Company  may  (if  they  elect  so  to  do)  furnish  the  right  of 
way  to  the  Louisville  &  Nashville  Railroad  Company  to  make 
the  above  connections,  independent  of  any  part  of  the  Nashville 
&  Northwestern  Railroad. 

In  witness  whereof,  the  President  of  the  Nashville  &  Chatta- 
nooga Railroad  Company,  on  the  part  of  that  company,  and 
the  President  of  the  Louisville  &  Nashville  Railroad  Company, 
on  the  part  of  the  latter  company,  have  set  their  hands  and 
the  seal  of  said  companies  this  the  first  day  of  May,  1872. 
Signed  in  duplicate, 
[SEAL]    NASHVILLE  &  CHATTANOOGA  RAILROAD  COMPANY, 

By  E.  W.  COLE,  President. 

Witness  as  to  signature  of  E.  W.  Cole,  President, 
W.  A.  GLEAVES, 
H.  C.  CARSON. 
[SEAL]       LOUISVILLE  &  NASHVILLE  RAILROAD  COMPANY, 

By  H.  D.  NEWCOMB,  President. 
W.  RAMSEY,  Secretary. 

The  above  lease  was  properly  acknowledged  and  registered  May  8, 
1872,  in  the  Register's  office  of  Davidson  County,  Tennessee,  in  book  46, 
page  104. 

N.,  C.  &  ST.  L.  RY.  )      ,,    ...     ,.  .   .     7 

(     Modification  agreement  as  to .  original 

L.  &  N.  R.  R.  Co.     j 

Parties. — This  contract  entered  into,  this  first  day  of  July, 
1896,  between  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way, a  corporation  created,  organized,  and  existing  under  the 


NASHVILLE,    CHATTANOOGA    A   ST.    LOUIS    RAILWAY.         589 

law  -  of  the  state  of  Tennessee,  and  hereinafter  called  the  first 
party,  and  the  Louisville  &  Nashville  Railroad  Company,  a 
corporation  created,  organized,  and  existing  under  the  laws  of 
the  state  of  Kentucky,  and  hereinafter  called  the  second  party, 
witnesseth— 

This  contract  modifies  the  one  set  out  in  the  page  next  preceding. 

Preamble. — WHEREAS,  By  an  agreement,  dated  the  first  day 
of  May,  1872,  between  the  Nashville  &  Chattanooga  Railroad 
Company  and  the  second  party,  said  Nashville  &  Chattanooga 
Railroad  Company  granted  and  guaranteed  to  the  second  party 
the  right  of  way  upon  and  perpetual  use  of  a  railroad  track 
extending  from  the  depot  of  the  second  party  at  College  street, 
Nashville,  Tenn.,  to  the  depot  grounds  of  the  Nashville  & 
Decatur  Railroad  Company,  Nashville,  Tenn.,  in  consideration 
of  which,  and  of  the  other  stipulations  of  said  agreement,  the 
second  party  agreed  to  pay  the  Nashville  &  Chattanooga  Rail- 
road company  one  thousand  five  hundred  ($1,500)  dollars  per 
month;  and, 

WHEREAS,  Said  railroad  track,  so  far  as  it  had  not  already 
been  constructed,  was  constructed  in  the  manner  provided  in 
said  agreement,  and  has  since  been  used  by  said  second  party 
as  provided  in  said  agreement,  the  second  party  paying  for 
such  use  the  sum  of  one  thousand  five  hundred  ($1,500)  dollars 
per  month;  and, 

WHEREAS,  the  first  party  is  the  successor  to  said  Nashville  & 
Chattanooga  Railroad  Company  and  has  succeeded  to  all  the 
latter  company's  rights  and  liabilities  under  said  agreement ; 
and, 

Lease  of  Nashville,  Chattanooga  &  St.  Louis  Railway  Com- 
pany to  Louisville  &  Nashville  Terminal  Company  referred 

to. — WHEREAS,  the  first  party  has,  by  a  lease  dated  the  27th  day 
of  April,  1896,  granted  and  demised  to  the  Louisville  and 
Nashville  Terminal  Company  certain  property  in  said  lease 
described  and  embracing  all  of  the  aforesaid  railroad  track  lying 
between  Cedar  and  Spruce  streets  in  said  city  of  Nashville, 
Tennessee,  for  the  terms  and  upon  the  conditions  in  said  lease 
expressed  ;  and  the  second  party  has  joined  in  the  said  lease 


540         LEASES  OF  CERTAIN  NASHVILLE  TRACKS. 

for  the  purpose  of  granting  and  demising  to  the  said  Termina) 
Company  all  rights  and  privileges  in  the  said  demise  property 
which  it,  the  said  second  party,  was  entitled  to  under  the  said, 
agreement  dated  the  first  day  of  May,  1872  ;  and, 

Lease  of  Louisville  &  Nashville  Railroad  Company  to  Louis- 
ville &  Nashville  Terminal  Company  referred  to.— WHEREAS, 

the  second  party  has,  by  a  lease  dated  the  27th  day  of  April, 
1896,  granted  and  demised  to  the  Louisville  &  Nashville 
Terminal  Company  certain  property  in  said  lease  described  to 
which  the  second  party  has  title  and  which  embraces  all  of  the 
aforesaid  railroad  track  lying  between  Gay  and  Cedar  streets 
in  said  city  of  Nashville,  Tennessee,  for  the  term  and  upon  the 
conditions  in  said  lease  expressed  ;  and  the  first  party  has 
joined  in  the  said  lease  for  the  purpose  of  granting  and  demis- 
ing to  the  said  Terminal  Company  all  rights  which  it,  the  said 
first  party,  was  entitled  to  under  the  said  agreement  of  the 
first  day  of  May,  1872  ;  and, 

WHEREAS,  By  reason  of  said  leases  to  said  terminal  company, 
the  second  party  will,  during  the  continuance  of  said  leases 
and  during  the  continuance  of  any  renewals  thereof  that  may 
be  made  as  provided  therein,  have  to  look  to  and  rely  upon  said 
terminal  company  for  the  use  of  all  tracks,  depots,  and  other 
facilities  upon  all  the  property  so  demised  and  granted  as 
aforesaid  by  the  first  party  to  said  terminal  company,  and  by 
the  second  party  to  said  terminal  company,  for  all  of  which 
the  said  second  party  will  have  to  make  compensation  or  pay 
rent  to  said  terminal  company; 

Former  lease  suspended  in  part.    Provision  for  revival, 

When. — Therefore,  it  is  hereby  agreed,  That,  during  the  contin- 
uance of  said  leases  and  of  any  renewals  thereof  that  may  be 
made  as  provided  therein,  the  said  agreement  of  the  first  day 
of  May,  1872,  shall  be  suspended  so  far  as  it  may  in  any  way 
apply  or  relate  to  any  of  the  property  covered  by  said  leases, 
and  the  said  second  party  shall  cease  to  pay  to  the  first  party 
the  said  one  thousand  five  hundred  ($1,500)  dollars  per  month 
and  every  part  thereof;  but  the  second  party  shall  continue  to 
have  the  use  of  the  remainder  of  the  railroad  track  to  which 


NASHVILLE,    CHATTANOOGA    A   ST.    LOUIS    RAILWAY.         541 

said  agreement  of  the  first  clay  of  May,  1872,  relates,  to  wit, 
the  railroad  track  from  College  street  to  Gay  street  (of  which 
the  second  party  shall  have  the  uninterrupted  use)  and  the 
railroad  track  from  Spruce  street  south  to  the  dej>ot  grounds 
of  the  Nashville  &  Decatur  Railroad  Company  (of  which  the 
second  party  shall  have  the  exclusive  use^,  in  accordance  with 
the  said  agreement  of  the  first  day  of  May,  1872.  And,  in 
consideration  of  the  uninterrupted  use  of  the  railroad  track 
from  College  street  to  Gay  street  and  of  the  exclusive  use  of 
the  railroad  track  from  Spruce  street  to  the  depot  grounds  of 
the  Nashville  &  Decatur  Railroad  Company  during  the  contin- 
uance of  the  aforesaid  leases  of  the  twenty-seventh  day  of 
April,  1896,  and  of  any  renewals  thereof  that  may  be  made  as 
provided  therein,  the  second  party  hereby  agrees  that  it  will, 
during  such  time,  maintain  and  keep  in  good  repair  and  safe 
condition  the  said  railroad  track  from  College  street  to  Gay 
street  and  the  said  railroad  track  from  Spruce  street  to  the 
depot  grounds  of  the  Nashville  &  Decatur  Railroad  Company, 
in  accordance  with  all  state  and  municipal  laws  affecting  the 
same,  and  will  pay  all  taxes  and  assessments  thereon,  and  will 
assume  and  discharge  all  liabilities  that  may  in  any  way  attach 
to  the  first  party  by  reason  of  the  second  party's  maintenance 
and  operation  of  said  tracks,  or  by  reason  of  the  second  party's 
failure  to  maintain  the  same. 

Whenever  the  said  leases  of  the  twenty-seventh  day  of  April, 
1896,  or  any  renewals  thereof  that  may  be  made  as  provided 
therein,  shall  be  terminated  for  any  cause  whatever,  or  in  any 
manner  whatever,  then  the  said  agreement  of  the  first  day  of 
May,  1872,  shall  be  revived  to  the  extent  to  which  it  is  hereby 
suspended,  and  shall  thereafter  be  of  the  same  force  and  effect 
in  every  particular  as  it  was  up  to  the  time  of  the  making  of 
the  leases  alxjve  referred  to,  dated  the  twenty -seventh  day  of 
April,  1896,  or  as  it  was  up  to  the  date  hereof;  and  thereafter 
the  first  party  shall  afford  to  the  second  party  each  and  every 
right  and  facility  provided  for  or  secured  to  the  second  party 
in  any  way  whatever  in  said  agreement  of  the  first  day  of  May, 
1872,  and  especially  shall  afford  to  the  second  party  the  use  of  a 


542         LEASES  OF  CERTAIN  NASHVILLE  TRACKS. 

railroad  track  from  Gay  street  to  Spruce  street,  at  least  equal 
in  convenience  and  all  other  respects  to  the  track  of  which  the 
second  party  has  up  to  this  time  had  the  use,  under  said  agree- 
ment dated  the  first  day  of  May,  1872;  and  whenever  said 
agreement  shall  again  come  into  full  force  and  effect  in  every 
particular,  and  the  first  party  shall  afford  the  second  party  all 
the  rights  and  facilities  therein  provided  for  or  secured  to  the 
second  party,  the  second  party  shall  again  pay  to  the  first 
party  compensation  at  the  rate  of  one  thousand  five  hundred 
($1,500)  dollars  per  month  as  stipulated  for  in  said  agree- 
ment, and  this  contract  shall  cease  and  determine.  This  con- 
tract shall  be  binding  upon  the  successors  and  assigns  of  the 
parties  hereto  as  well  as  upon  the  parties  hereto  themselves. 

In  witness  whereof,  the  parties  hereto  have  hereunto  sub- 
scribed their  names  and  affixed  their  corporate  seals,  the  date 
first  above  written,  in  duplicate  originals. 

NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY. 

[SEAL.]  By  J.  W.  THOMAS,  President. 

Attest:     J.  H.  AMBROSE,  Secretary. 

LOUISVILLE  &  NASHVILLE  RAILROAD  COMPANY. 

[SEAL.]  By  M.  H.  SMITH,  President. 

Attest:     J.  H.  ELLIS,  Secretary. 

The  above  lease  was  properly  signed  and  acknowledged  by  both 
companies,  but  has  not  as  yet  been  registered. 


NASHVILLE,    CHATTANOOGA    A    ST.     LOUIS    RAILWAY.          543 


CHAPTER  XLIII. 

LEASE  OF  JOINT  USE  OF  TRACK  FROM  STEVENSON,  ALABAMA, 

TO  CHATTANOOGA  TO  MEMPHIS  &  CHARLESTON 

RAILROAD  COMPANY. 

Parties. — Tins  AGREEMENT,  entered  into  this  first  day  of 
October,  eighteen  hundred  and  eighty,  between  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  a  corporation  created  and 
existing  under  the  laws  of  the  states  of  Kentucky,  Tennessee, 
and  Alabama,  as  party  of  the  first  part,  the  Memphis  &  Charles- 
ton Railroad  Company,  a  corporation  created  and  existing  under 
the  laws,  of  the  stales  of  Tennessee,  Alabama,  and  Mississippi, 
as  party  of  the  second  part,  and  the  east  Tennessee,  Virginia, 
and  Georgia  Railroad  Company,  a  corporation  created  and 
existing  under  the  laws  of  the  states  of  Tennessee,  Virginia,  and 
Georgia,  as  lessee  of  the  railroad  of  the  party  of  the  second 
part,  as  party  of  the  third  part,  witnesseth — 

The  Memphis  &  Charleston  Railroad  Company  was  sold  to  the  South- 
ern Railway  Company  February  26,  1898,  and  is  now  operated  by  the 
latter  company. 

1.  Consideration;  part  of  road  leased;  duration  of  lease; 

Conditions. — That  the  contract  heretofore  made  on  the  twenty- 
third  day  of  June,  1858,  and  which  would  expire  on  the  twenty- 
third  day  of  June,  1888,  between  the  Nashville  &  Chattanooga 
Railroad  Company,  and  the  Memphis  &  Charleston  Railroad 
Company,   is  hereby  abrogated  by  mutual  consent;  Cons|dera. 
and  that  for  and  in  consideration  of   the  sum   of  tk>n- 
five  thousand  dollars  ($5,000)  per  month  to  be  paid  monthly 
by  the  party  of  the  second  part,  the  party  of  the  first  part 
hereby  leases  and  demises  and  guarantees  to   the  Ptrtofroad 
party  of  the  second  part,  the  joint  use  of  their  line  le*sed- 
of    railway    between    Stevenson,   Alabama,  and    Chattanooga, 
Tennessee,  for  a  period  of  eight  (8)  years  from  the  Duratton  of 
first  day  of  October,  1880,  for  the  passage  of  all  '"**• 
freight  and  passenger  trains  of  the    Memphis   &   Charleston 


54:4       LEASE  OF  TRACK  FROM  STEVENSON  TO  CHATTANOOGA. 

Railroad,  running  upon  schedules  to  be  made  by  the  officers  of 
the  Nashville,  Chattanooga  &  St.  Louis  Railway,  allowing 

not  exceeding:  one  hour  and  forty-five  minutes  for 
Conditions. 

passenger  trains,  and  four  hours  for  freight  trains 

between  those  points,  unavoidable  accidents  and  delays  ex- 
cepted;  the  leaving  time  at  Stevenson  and  Chattanooga  to  be 
designated  by  the  proper  officers  of  the  Memphis  &  Charleston 
Railroad  Company.  It  being  understood  that  the  same  facili- 
ties are  to  be  allowed  the  trains  of  the  Memphis  &  Charleston 
Railroad  Company  as  are  allowed  trains  of  the  same  class  of 
the  Nashville,  Chattanooga  &  St.  Louis  Railway,  both  as 
regards  speed  and  rights  to  main  track,  whether  running  on 
regular  schedule  or  by  special  orders.  Said  trains  to  be  run  at 
the  expense  and  risk  of  the  Memphis  &  Charleston  Railroad 
Company,  except  for  such  damages  as  are  caused  by  fault  of 
the  party  of  the  first  part,  or  by  the  neglect  or  carelessness  of 
the  officers  or  employes  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway;  the  trains  of  the  Memphis  &  Charleston  Rail- 
road Company  to  be  allowed  to  take  water  from  the  water 
stations  between  Stevenson  and  Chattanooga  without  charge, 
not  including  water  at  the  two  points  named. 

2.  Conditions  (continued.)— The  passenger  trains  of  the  party 
of  the  second  part  are  to  run  to  the  present  car  shed  at  Chat- 
tanooga, and  are  to  have  the  right  to  use  any  side  tracks  be- 
longing  to  the  Nashville,   Chattanooga  &  St.   Louis    Railway 
necessary  in  making  up  said  passenger  trains,  but  the  freight 
trains  of    the  Memphis  &  Charleston    Railroad   are   to    pass 
through  the  yard  of  the  Nashville,   Chattanooga  &  St.   Louis 
Railway  over  a  connecting  track  or  tracks,  with   their  own 
track,  and  to  and  from  any  railroad  with  which  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  tracks  connect  or  may  here- 
after connect,  during  the  existence  of  this  contract. 

3.  Connecting  track  in  Chattanooga  to  be  kept  clear.— it  is 

also  agreed  that  one  track  connecting  with  the  tracks  of  the 
Memphis  &  Charleston  Railroad  Company's  tracks,  and  with 
the  tracks  of  other  roads  in  Chattanooga  shall  be  kept  clear  for 
the  passage  of  said  trains  of  the  Memphis  &  Charleston  Rail- 


NASHVILLE,    CHATTANOOGA    A    8T.    LOUIS    RAILWAY.         545 

road  both  ways,  and  no  unnecessary  delay  is  to  be  caused  said 
trains  whether  they  arrive  or  depart  on  their  schedule  time  or  not. 

4.  Main  track  to  be  kept  in  first-class  order — The  Nash- 
ville, Chattanooga  &  St.   Louis  Railway  Company  agrees  and 
binds  itself  to  keep  their  road  between  Stevenson,  Ala.,  and 
Chattanooga,  Tenn.,  and  at  Chattanooga  in  first-class  order. 

5.  Employes  to  be  under  whose  orders.— The  train  men  of 

the  Memphis  &  Charleston  Railroad  Company,  while  on  the 
joint  track  between  Stevenson  and  Chattanooga,  shall  be  under 
tin-  control  of  the  officers  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  Company  so  far  as  the  movement  of  their  trains 
arc  concerned,  and  shall  be  subject  to  the  same  rules  and  regu- 
lations as  the  trainmen  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  but  are  to  be  paid  by  the  Memphis  &  Charles- 
ton Railroad  Company. 

6.  Chattanooga  terminal  facilities  provided  for.— The  Mem- 
phis &  Charleston  Railroad  Company  are  to  furnish  their  own 
terminal   facilities,   yard  room,   freight  and  passenger  depots 
at  Chattanooga,  but  they  shall  have  the  right  to  deliver  any 
cars  from   their   line  to  any  mills  or  factories  located  in  or 
about  the  city  of  Chattanooga  on  the  sidetracks  of  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  or  on  tracks  connect- 
ing therewith;  also,  to  receive  any  cars  for  their  line  or  con- 
nections from  such  mills  or  factories. 

7.  Local  business  between  Stevenson  and  Chattanooga 

provided  for. — It  is  further  understood  and  agreed  between 
said  parties  that  the  Memphis  &  Charleston  Railroad  Company 
shall  not  do  or  undertake  to  do  any  local  business  between 
Stevenson  and  Chattanooga  or  to  disturb  the  local  business  of 
the  Nashville,  Chattanooga  &  St.  Louis  Railway,  that  business 
being  conceded  to  belong  to  the  last  named  company.  The 
Memphis  &  Charleston  Railroad  Company  have  the  right, 
however,  to  take  freight  to  local  stations  on  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  between  Stevenson  and 
Chattanooga  coming  from  local  stations  on  its  road  west  of 
Stevenson,  or  to  receive  freight  at  such  stations  going  to  local 
stations  on  its  road  west  of  Stevenson. 

35 


546   LEASE  OF  TRACK  FROM  STEVENSON  TO  CHATTANOOGA. 

8.  Suits  for  damages  on  line  of  road  provided  for.— in  case 

of  a  suit  by  a  passenger  or  shipper  against  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway,  except  for  damages  caused  by  its 
own  negligence  or  fault,  then  it  is  to  be  indemnified  by  the 
Memphis  &  Charleston  Railroad  Company,  and  in  case  of  suit 
by  a  passenger  or  shipper  against  the  Memphis  &  Charleston 
Railroad  Company,  except  for  damages  caused  by  its  own  neg- 
ligence or  fault,  then  it  is  to  be  indemnified  by  the  Nashville, 
Chattanooga  &  St.  Louis  Railway. 

9.  Memphis  &  Charleston  Railroad  Company  to  have  fees 

for  through  mail,  When. — The  Memphis  &  Charleston  Railroad 
Company  is  to  receive  from  the  postoffice  department  the  pay 
for  all  through  mail  carried  in  their  cars  from  and  after  the 
date  of  this  contract. 

r  10.  Agents  of  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way to  be  agents  of  the  Memphis  &  Charleston  Railroad  Co. 

When. — The  agents  of  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  at  the  intermediate  stations  between  Stevenson  and 
Chattanooga  shall  act  as  the  agents  of  the  Memphis  &  Charles- 
ton Railroad  Company  for  receiving  and  billing  freight  and 
delivering  freight  to  such  intermediate  stations,  and  collecting 
the  money  and  paying  the  same  over  to  the  Memphis  & 
Charleston  Railroad  Company. 

11.  Telegraph  wires    provided  for.— The    Memphis    & 

Charleston  Railroad  Company  shall  have  the  right  to  erect  a 
telegraph  wire  on  the  poles  of  the  Nashville,  Chattanooga  & 
St.  Louis  Railway  for  its  own  use,  in  so  far  as  that  company 
has  the  right  to  confer  this  privilege  at  present,  but  it  will 
grant  the  privilege  absolutely  after  the  first  day  of  May,  1882, 
and  in  the  repairs  of  said  wire  the  Nashville,  Chattanooga  & 
St.  Louis  Railway  will  give  the  same  labor  and  attention  that 
it  does  to  its  own  wires  or  to  those  of  the  Western  Union  Tele- 
graph Company  running  along  the  line  of  its  road. 

12.  Contract  transferrable. — This  contract  shall  be  trans- 
ferrable,  and  shall  be  used  under  the  lease  of  the  road  of  the 
Memphis  &  Charleston  Railroad  Company  to  the  East  Tennes- 
see, Virginia  &  Georgia  Railroad  Company. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         547 

13.  Arbitrators  provided-tor. — In  case  of  any   misunder- 
standing as  to  the  intent  or  meaning  of  this  contract,  or  the 
practical  workings  thereof,   the  question  is  to  be  referred   to 
two  (2)  arbitrators,  one  to  be  selected  by  each  company,  and, 
if  necessary,  they  to  select  a  third,  and  the  decision  of  such 
arbitration  to  be  tinal  as  between  the  two  companies. 

14.  Duration  of  lease;  how  terminated.— This  contract 

shall  continue  in  force  for  eight  (8)  years  from  October  1, 
1880,  and  thereafter  until  terminated  by  two  years'  notice  pre- 
viously given  by  either  party  of  a  desire  to  terminate  it,  it 
being  understood  that  notice  may  be  given  at  any  time  on  or 
after  six  years,  so  as  to  terminate  the  contract  on  or  after  the 
expiration  of  eight  years. 

15.  Old  lease  abrogated. — The  East  Tennessee,  Virginia  & 
Georgia  Railroad  Company  and  the  other  parties  to  this  con- 
tract hereby  assent  to  the  annullment  or  abrogation   of  the 
contract  of  lease  made  and  entered  into  between  the  Nashville 
&  Chattanooga  Railroad  Company  and  the  Memphis  &  Charles- 
ton Railroad  Company,  bearing  date  the  twenty-third  day  of 
June,    1858,   and  hereby  agree  to  and  do  substitute  this  con- 
tract of  lease  for  and  in  the  stead  of  the  aforesaid  contract  of 
lease,   and  the  East  Tennessee,  Virginia  &  Georgia  Railroad 
Company,  as  lessee  of  the  Memphis  &  Charleston  Railroad, 
hereby  accepts  such  substitution,   with   the   right  to  use  the 
same  as  fully  as  it  heretofore  had  the  right  to  use  the  afore- 
said contract,  which  is  hereby  abrogated  and  annulled. 

In  witness  whereof  the  subscribing  parties  have  affixed  their 
respective  hand  and  seal,  this  twenty-ninth  day  of  September, 
1880,  in  duplicate. 

For  the  NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY  Co., 

J.  \V.  THOMAS,  General  Superintendent. 
For  the  MEMPHIS  &  CHARLESTON  RAILROAD  COMPANY, 

R.  T.  WILSON,  President. 
For  the  EAST  TENNESSEE,  VIRGINIA  &  GEORGIA  RAILROAD  Co., 

E.  W.  COLE,  President. 
JAMES  G.  MITCHELL,  Secretary. 


54:8  LEASE  OF  TRACK  AT  DALTON,  GA. 

1.  The  foregoing  instrument  was  properly  acknowledged  by  R.  T. 
Wilson  and  E.   W.    Cole  as  president  of    their    respective    companies. 
The  board  of  directors  of  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way authorized  J.  W.  Thomas,  as  general  superintendent,  to  sign  and 
subsequently  ratified  it  September  29,  1880. 

2.  The  Memphis  &  Charleston    Railroad  Company   was   sold   to    the 
Southern  Railway  Company,  February  26,  1898,  and  is  now  operated  by 
the  latter  company. 


CHAPTER  XLIV. 

LEASE   OF  JOINT    USE    OF  TRACK   OF    WESTERN   A   ATLANTIC 
RAILROAD  AT  DALTON,  GA.,  TO  EAST  TENNESSE,  VIR- 
GINIA &  GEORGIA   RAILWAY  COMPANY. 

[The  East  Tennessee,  Virginia  &  Georgia  Railway  is  now  owned  and 
operated  by  the  Southern  Railway  Company.] 

Parties. — This  agreement,  entered  into  this  thirty-first  day 
of  October,  1891,  between  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  lessee  of  the  Western  &  Atlantic  Railroad, 
party  of  the  first  part,  and  the  East  Tennessee,  Virginia  & 
Georgia  Railway  Company,  party  of  the  second  part,  witness- 
eth: 

i.  Description  of  leased  premises;  duration  of  lease.— 

That,  for  and  in  consideration  of  payments  to  be  made  as  here- 
inafter provided,  and  other  valuable  considerations,  the  first 
party  hereby  leases  unto  the  second  party  the  joint  use  of  so 
much  of  a  track  next  east  of  its  present  passenger  station  as 
lies  between  a  switch  by  which  the  East  Tennessee,  Virginia  & 
Georgia  Railway  connects  with  it  near  the  west  side  of  Waugh 
street,  in  Dalton,  Ga.,  to  a  point  near  the  north  line  of  Gordon 
street,  being  near  the  southern  end  of  its  station  grounds  at 
Dalton,  at  which  point  is  a  switch  where  the  East  Tennessee, 
Virginia  &  Georgia  Railway,  from  the  south,  connects  with  it, 
being  shown  in  blue  print  herewith  with  heavy  line,  said  track 
being  about  (1,000)  one  thousand  feet  long  and  that  now  being 
jointly  used  by  the  East  Tennessee,  Virginia  &  Georgia  Rail- 
Duration  way  Company.  Said  lease  to  continue  in  force  for 
of  lease.  gve  years  frOm  November  1,  1891,  unless  abro- 
gated by  the  East  Tennessee,  Virginia  &  Georgia  Railway 


NASHVILLE,    CHATTANOOGA    A    8T.    LOUIS    RAILWAY.         549 

Company,  by  giving  six  months'  notice  to  the  Nashville, 
Chattanooga  &  St.  Louis  Railway. 

2.  Consideration;  track  to  be  kept  in  order  by,  who.— 

The  East  Tennessee,  Virginia  &  Georgia  Railway  Company 
agrees,  for  such  joint  use  of  the  above  mentioned  track,  to 
pay  to  the  first  party  monthly,  in  due  course  of  business,  the 
sum  of  two  hundred  and  fifty  dollars,  it  being  understood  and 
agreed  that  such  payments  of  two  hundred  and  fifty  dollars 
shall  be  in  full  for  the  use  of  the  one  thousand  (1,000)  feet  of 
track  herein  described.  The  first  party  is  to  maintain  the 
track  in  good  condition  at  its  own  cost  and  ex[>ense.  The 
track  herein  leased  shall  be  kept  free  from  standing  cars,  so  as 
at  all  times  to  permit  the  passage  of  the  second  party's  trains. 

3.  Who  to  be  liable  for  accidents  or  damages.— It  is  mutu- 
ally agreed  that  each  party  is  to  l>e  responsible  for  all  claims 
or  damages  to  its  trains,  and  to  property,  persons  or  stock, 
arising   from  or  in  connection  with   such  trains,    unless  such 
claims  or  damages  shall  arise  from  the  neglect  or  carelessness 
of  the  other  party  or  its  employes  or  agents,  in  which  case  the 
negligent  party  shall  hold  the  other  harmless. 

4.  Arbitration  provided  for. — In  case  of  any  misunderstand- 
ing as  to  the  intent  or  meaning  of  this  contract  or  its  practical 
workings  the  question  shall  be  referred  to  two  arbitrators,  one 
to  be  selected  by  each  company,  and  if  necessary  they  shall 
select  a  third,  and  the  decision  of  such  arbitration  shall  be  final 
and  conclusive  as  between  the  two  companies. 

In    witness   whereof,   the  parties    hereto,    by  their   proper 
officers  having  authority  to  act,  have  signed  and  executed  this 
agreement,  in  duplicate,  on  the  day  and  year  first  above  written. 
NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 

Lessee  of  Western  &  Atlantic  Railroad. 

[SEAL.]  J.  W.  THOMAS,  President. 

Attest:     J.  H.  AMBROSE,  Secretary. 
EAST  TENNESSEE,  VIRGINIA  &  GEORGIA  RAILWAY  COMPANY. 

[SEAL.]  By  HENRY  FINK,   Vice  President. 

L.  M.  SCHWAN,  Secretary. 

The  East  Tennessee,  Virginia  &  Georgia  Railway  is  now  owned  and 
operated  by  the  Southern  Railway  Company. 


550    LEASE  TRACK  BETWEEN  WAUHATCHIE  AND  CHATTANOOGA. 


CHAPTER  XLV. 

LEASE    OF  JOINT    USE    OF   TRACK  BETWEEN   WAUHATCHIE  & 
CHATTANOOGA  TO  ALABAMA   GREAT  SOUTH- 
ERN RAILROAD  COMPANY. 

Parties. — This  agreement  entered  into  the  eighteenth  day  of 
January,  eighteen  hundred  and  eighty-one  (1881)  by  and  be- 
tween the  Nashville,  Chattanooga  &  St.  Louis  Railway,  a  cor- 
poration created  and  existing  under  the  laws  of  the  states  of 
Kentucky,  Tennessee  and  Alabama,  as  party  of  the  first  part, 
and  the  Alabama  Great  Southern  Railroad  Company,  a  cor- 
poration created  and  existing  under  the  laws  of  the  State  of 
Alabama  and  recognized  by  the  laws  of  Tennessee,  Georgia 
and  Mississippi,  as  party  of  the  second  part,  witnesseth: 

The  Southern  Railway  Company  owns  a  controlling  interest  in  the 
stock  of  the  Alabama  Great  Southern  Railroad  Company. 

i.  Consideration,  part  of  road  leased,  duration  of  lease, 

Conditions. — That  for  and  in  consideration  of  the  sum  of  four- 
teen thousand  four  hundred  dollars  ($14,400)  per  annum, 
to  be  paid  in  monthly  installments  of  twelve  hundred  dollars 
($1,200)  each  by  the  party  of  the  second  part,  the  party  of 
the  first  part  hereby  leases,  demises  and  guarantees  to  the 
Part  of  road  Party  °^  the  second  part  the  joint  use  of  its  line  of 
leased.  railway  between  Wauhatchie  and  Chattanooga, 

Tennessee,  for  a  period  of  thirty-three  (33)  years  from  the 
Expiration  of  ^rs^  day  of  January,  1881,  and  until  this  contract 
Iease-  is  terminated  as  hereinafter  provided,  for  the 

passage  of  all  freight,  passenger  and  other  trains  of  the  Ala- 
bama   Great    Southern     Railroad     Company    running    upon 
schedules  to  be  made  by  the  officers  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  allowing  not  exceeding 
fifteen  (15)  minutes  for  passenger  and  thirty  (30) 
minutes  for  freight  trains  between  those  points,  unavoidable 
accidents  and  delays  excepted;  the  leaving  time  at  Wauhatchie 


NASHVILLE,    CHATTANOOGA    A    8T.    LOUIS    RAILWAY.         551 

and  Chattanooga  to  be  designated  by  the  proper  officers  of  the 
Alabama  Great  Southern  Railroad  Company,  the  party  of  the 
first  part  having  the  right  to  vary  this  leaving  time  either  way 
fifteen  (15)  minutes  for  passenger  trains  and  thirty  (30)  minutes 
for  freight  trains,  it  being  understood  that  the  same  facilities 
are  to  be  allowed  the  trains  of  the  Alabama  Great  Southern 
Railroad  as  are  allowed  trains  of  the  same  class  of  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  both  as  regards  speed 
and  rights  to  main  track,  whether  running  on  regular  schedule 
or  by  special  orders,  and  in  case  a  passenger  train  of  the  party 
of  the  second  part  and  a  freight  train  of  the  party  of  the  first 
part  are  moving  in  the  same  direction,  the  passenger  train  of 
the  Alabama  Great  Southern  Railroad  shall  in  all  cases  have 
preference  over  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way freight  train.  The  trains  of  the  party  of  the  second  part 
to  be  run  at  the  expense  and  risk  of  the  Alabama  Great  South- 
ern Railroad  Company  except  for  such  damages  as  are  caused 
by  fault,  default,  or  negligence  of  the  party  of  the  first  part, 
or  by  the  neglect  or  carelessness  of  the  officers  or  employes  of 
the  party  of  the  first  part. 

2.  Conditions  (Continued). — The  passenger  trains  of  the 
party  of  the  second  part  are  to  run  to  and  from  the  present 
union  passenger  depot  at  Chattanooga,  if  so  desired  by  them, 
the  use  of  the  depot,  however,  to  be  arranged  for  with  the 
roads  owning  the  same;  and  their  freight  trains  to  and  from 
the  present  junction  of  the  Alabama  Great  Southern  Railroad 
with  the  main  track  of  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  in  the  city  of  Chattanooga.  The  trains  or  engines  of 
the  party  of  the  second  part  to  have  free  ingress  or  egress  to 
and  from  all  sidetracks  that  are  now,  or  that  may  hereafter 
be,  constructed  and  belong  to  the  party  of  the  first  part 
between  Lookout  mountain  and  Montgomery  avenue  in  the  city 
of  Chattanooga,  for  the  purpose  of  delivering  freight  from  and 
receiving  freight  destined  to  points  ujKm  the  line  of  the  party 
of  the  second  part;  and  the  trains  or  engines  of  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  to  have  free  access  to  any  or 
all  present  or  future  sidetracks  of  the  party  of  the  second  part 


552    LEASE  TRACK  BETWEEN  WAUHATCHIE  AND  CHATTANOOGA. 

in  the  city  of  Chattanooga,  for  the  purpose  of  delivering 
freight  from  and  receiving1  freight  destined  to  points  upon  the 
line  of  the  party  of  the  first  part. 

3.  Employes  to  be  under  whose  instructions.— The  em- 
ployes of  each  company  shall  be  under  the  instructions  of  the 
officers  of  the  company  upon  whose  track  they  may  be. 

4.  Road  tO  be  kept  Up,  by  Who.— The  Nashville,  Chattanooga 
&  St.  Louis  Railway  is  to  maintain  a  first-class  roadbed  be- 
tween  Wauhatchie  and  Chattanooga  in  all  its  essentials;    to 
properly  ballast,  and  keep  ballasted,  the  track;  to  drain  and 
repair,  and  keep  in  repair,  the  embankments,  cuttings,  water- 
ways, and  river  walls,  and  to  renew  and  maintain  all  bridges  in 
in  the  highest  state  of  efficiency;  and,  when  renewals  of  the 
present  rails  are  necessary,  to  relay  said  track  with  steel  rails 
weighing  not  less  than  fifty-eight  (58)  pounds  per  lineal  yard. 
The  party  of  the  second  part  shall  have  the  privilege  to  make 
official   representation  to  the  party  of  the  first  part  of  any 
requirement  needed  to  keep  the  track  in  the  highest  state  of 
efficiency,  but  the  Alabama  Great  Southern  Railroad  Company 
shall  not  in  any  way  be  responsible  ultimately  for   the  safe 
condition  of  said  track. 

5.  Traffic  facilities;  block  system  provided  for.— The  party 

of  the  first  part  to  provide  every  facility  for  the  safe  and 
expeditious  working  of  the  traffic,  and  to  apply  the  block  sys- 
tem and  most  approved  electrical  apparatus  within  a  reasonable 
time,  and  make  a  passing  point  between  Wauhatchie  and 
Lookout  Mountain  whenever  such  becomes  necessary,  subject, 
however,  to  the  stipulations  of  this  agreement  or  contract. 

7.  Termination  of  lease  provided  for.— it  is  also  agreed 

and  understood  that  at  any  time  after  the  first  day  of  January, 
nineteen  hundred  and  eleven  (1911),  either  party  can  give 
three  years'  notice  in  writing  to  terminate  this  agreement,  and 
in  case  such  notice  is  given,  this  contract  to  continue  in  force 
for  three  years  after  the  giving  of  such  notice  by  either  party. 

8.  Signing  of  lease  to  conform  to  by-laws,  etc.— This 

agreement  to  be  made  effectual  in  accordance  with  the  by-laws 
and  charters  of  each  respective  company,  if  anything  of  that 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         553 

kind  beyond    the    l>elow    mentioned    signing,   and   sealing    IHJ 
necessary  to  make  this  contract  effectual. 

In  witness  whereof,  the  parties  hereto  have  caused  these 
presents  to  be  signed  by  their  respective  presidents  and  secre- 
taries, and  their  corporate  seals  to  be  affixed  hereto,  this  the 
seventeenth  day  of  February,  eighteen  hundred  and  eighty-one. 

THE  NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 
[SEAL.]  By  JAS.  D.  PORTER,  President. 

R.  C.  BRANSFORD,  Secretary. 

The  seal  of  the  Alabama  Great  Southern  Railroad  Company 
was  hereto  affixed  this  fifteenth  day  of  March,  1881,  in  the 
presence  of  AUGUSTUS  B.  AHNHUSER,  President. 

[SEAL.]     R.  V.  TOMLINSON,  Secretary. 

Extract  from  the  minutes  of  board  meeting  of  the  Alabama 
Great  Southern  Railroad  Company,  held  the  fifteenth  day  of 
March,  1881. 

Read  the  agreement  in  duplicate  entered  into  the  fifteenth 
day  of  January,  1881,  between  the  Nashville,  Chattanooga  & 
St.  Louis  Railway,  of  the  first  part,  and  the  Alabama  Great 
Southern  Railroad  Company,  of  the  second  part,  as  to  the  use 
by  the  latter  company  of  the  track  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  between  Wauhatchie  and  Chatta- 
nooga, sealed  with  the  seal  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  and  signed  by  the  president  and  secretary  on 
the  seventeenth  of  February,  1881,  and  the  agreement 
having  been  fully  considered. 

It  was  resolved  that  the  seal  of  this  company  be  affixed  to 
both  parts  of  the  said  agreement  in  the  presence  of  the  president 
and  the  secretary,  and  that  when  so  executed  one  part  be  re- 
turned to  Mr.  Scott  together  with  a  copy  of  this  resolution. 

[Correct  extract.] 

R.  V.  TOMLINSON,  Secretary. 

The  Southern  Railway  Company  now  owns  a  controlling  interest  in 
the  stock  of  the  Alabama  Great  Southern  Railroad  Company. 


554  LEASE    TO    S.   A.   L.   B.   R.    R. 


CHAPTER  XLVI. 

LEASE  TO  SEABOARD  AIR  LINE  BELT  RAILROAD  COMPANY 
OF  TERMINAL  FACILITIES  AT  ATLANTA,  GEORGIA,  FOR 
•  ITSELF  AND   GEORGIA,    CAROLINA   &   NORTHERN 
RAILWAY,    AND    CONTRACT    FOR    INTER- 
CHANGE OF  BUSINESS  BY  AND  WITH 
NASHVILLE,  CHATTANOOGA  & 
ST.  LOUIS  RAILWAY. 

Parties. — THIS  AGREEMENT,  made  and  entered  into  the  first 
day  of  October,  A.  D.  eighteen  hundred  and  ninety-two, 
between  the  Nashville,  Chattanooga  &  St.  Louis  Railway, 
lessee  of  the  Western  &  Atlantic  Railroad,  party  of  the  first 
part,  and  the  Seaboard  Air  Line  Belt  Railroad  Company,  a 
corporation  duly  incorporated  and  existing  under  the  laws  of 
the  state  of  Georgia,  party  of  the  second  part:  WITNESSETH, 
that, 

Preamble. — WHEREAS,  The  said  party  of  the  second  part  is 
authorized  by  its  charter  or  act  of  incorporation  to  construct 
and  operate  a  railroad  from  a  point  at  or  near  North  Decatur, 
a  station  on  the  Georgia,  Carolina  and  Northern  Railway,  to  a 
point  at  or  near  Ho  well's,  a  station  on  the  said  Western  &  At- 
lantic Railroad,  said  connection  at  or  near  Howell's  to  be  made 
in  such  manner  as  to  form  what  is  commonly  known  as  a  "  Y  ' 
track;  and, 

WHEREAS,  The  said  party  of  the  second  part  has  commenced 
the  construction  of  said  railroad  or  belt  line  between  the  points 
named;  and, 

WHEREAS,  It  is  considered  for  the  best  interest  of  both  the 
said  party  of  the  first  part  and  the  said  party  of  the  second 
part  that  an  agreement  should  be  made  to  facilitate  the  doing 
of  business  over  said  railroad  and  for  the  interchange  of  traffic. 

Interchange  of  business  provided  for,  conditions,  duration 
Of  contract. — Now,  THEREFORE,  THIS  AGREEMENT  FURTHER 
WITNESSETH,  That  in  consideration  of  the  premises  and  for 


NAMIMLLE,    CHATTANOOGA    A   ST.    LOUIS    RAILWAY.         555 

th6  purposes  aforesaid,  the  said  Nashville,  Chattanooga  &  St. 
Louis  Railway,  lessee  of  the  Western  &  Atlantic  Railroad, 
party  of  the  first  part,  covenants  and  agrees  that,  upon  the 
completion  of  said  railroad  from  a  point  at  or  near  North 
Decatur,  a  station  on  the  Georgia,  Carolina  and  Northern  Rail- 
way, as  aforesaid,  to  a  point  at  or  near  Howell's,  a  station  on 
the  said  Western  &  Atlantic  Railroad,  it  will,  for  and  during 
the  unexpired  term  of  its  lease  of  the  said  Western  &  Atlantic 
Railroad,  to-wit,  for  a  term  of  twenty-seven  (27)  years,  be  the 
same  more  or  less,  interchange  business,  both  through  and 
local,  with  said  Seaboard  Air  Line  Belt  Railroad  and  its  con- 
necting lines  upon  terms  as  favorable  and  as  advantageous  to 
said  road  and  its  connecting  lines  as  those  given  to  any  other 
railroad  entering  the  city  of  Atlanta. 

Receiving  and  delivering  cars  on  tracks  at  Howell's  pro- 
vided for;  Consideration. — And  the  said  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  lessee  as  aforesaid,  further 
covenants  and  agrees  that  it  will  receive  and  deliver  loaded 
cars  on  connecting  tracks  at  Howell's  from  and  to  said  Sea- 
board Air  Line  Belt  Railroad  Company,  or  any  of  its  connect- 
ing lines  of  the  Seaboard  Air  Line  system,  to  and  from  any 
railroads  connecting  at  Atlanta,  which  may  now  or  which  may 
be  hereafter  reached  directly,  or  connect  with  said  Western 
&  Atlantic  Railroad,  at  the  rate  of  two  dollars  ($2)  per  car. 

Joint  use  of  union  depot  at  Atlanta  provided  for;  considera- 
tion.— And  the  said  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way, lessee  as  aforesaid,  further  covenants  and  agrees  that,  in 
the  event  the  said  Sealxmrd  Air  Line  Belt  Railroad  Company 
should  desire  and  determine  to  use  the  union  depot  in  the  city 
of  Atlanta  for  the  passenger  trains  of  the  Georgia,  Carolina  & 
Northern  Railway,  then  and  in  that  event,  it  shall  have  the 
right  and  privilege  of  using  the  tracks  of  the  Western  & 
Atlantic  Railroad  for  that  purpose  u|x>n  paying  to  said  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  lessee  as  aforesaid, 
the  sum  of  twelve  thousand  five  hundred  dollars  per  annum 
ground  rent  for  the  joint  use  by  their  passenger  trains  of  the 
union  depot* in  Atlanta,  and,  in  addition,  one  thousand  dollars 


556  LEASE    TO    S.   A.    L.   B.   R.   R. 

per  annum  to  the  roads  owning  the  union  depot  building,  and 
also  their  proportion  of  the  operating  expenses  and  mainten- 
ance of  the  depot,  to  be  proportioned  as  at  present  divided 
by  the  board  of  control  of  the  union  depot,  the  true  intent 
and  meaning  of  this  provision  being  to  give  to  the  said  Sea- 
board Air  Line  Belt  Railroad  Company,  party  of  the  second 
part,  the  right  to  use  said  railroad  tracks  and  depot  building 
for  the  passenger  trains  of  the  Georgia,  Carolina  &  Northern 
Railway,  upon  the  same  terms  and  conditions  and  upon  the 
same  rentals  as  those  now  prescribed  for  and  paid  by  the 
Georgia  Pacific  Railway  Company  for  similar  privileges,  and 
it  is  further  agreed  that  should  any  reduction  be  made  to 
the  Georgia  Pacific  Railway  Company  for  the  use  of  said 
privileges,  a  similar  reduction  shall  be  made  to  the  Seaboard 
Air  Line  Belt  Railroad  Company. 

Cleaning  and  storing  of  engines  and  cars  provided  for; 

Consideration. — And  the  said  Nashville,  Chattanooga  &  St. 
Louis  Railway,  lessee  as  aforesaid,  further  covenants  and 
agrees  to  store  and  clean  the  passenger  engines  and  coaches  of 
the  said  Seaboard  Air  Line  Belt  Railroad  Company,  and  those 
used  by  it  belonging  to  the  Georgia,  Carolina  &  Northern 
Railway,  while  laying  over  at  Atlanta,  at  the  rate  of  one  dollar 
for  each  engine  or  coach  so  stored  and  cleaned,  and  charge 
actual  cost  for  switching,  hostling,  repairs,  supplies,  fuel,  or 
water  furnished  to  said  engines  or  coaches. 

Termination  of  contract  in  part,  provided  for.— And  it  is 

mutually  understood,  covenanted,  and  agreed  that  the  said 
Seaboard  Air  Line  Belt  Railroad  Company  is  to  have  the  right 
to  terminate  and  annul  this  agreement,  so  far  as  the  same 
refers  to  passenger  trains,  engines,  and  coaches,  upon  giving 
to  said  Nashville,  Chattanooga  &  St.  Louis  Railway,  lessee  as 
aforesaid,  thirty  days'  notice  in  writing  of  its  intention  so  to  do. 
In  witness  whereof,  the  said  Nashville,  Chattanooga  &  St. 
Louis  Railway,  lessee  of  the  Western  &  Atlantic  Railroad,  and 
the  said  Seaboard  Air  Line  Belt  Railroad  Company,  have 
caused  these  presents  to  be  signed  by  their  respective  presidents 
and  their  corporate  seals  to  be  hereto  affixed  and  attested  by 


NASHVILLE,    CHATTANOOGA   A   ST.    LOUIS    RAILWAY.         557 

their    respective   secretaries,    the   day   and    year   first   above 
written. 

NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 
[SEAL.]  By  J.  W.  THOMAS,  President. 

Attest:  J.  H.  AMBROSE,  Secretary. 

SEABOARD  AIR  LINE  BELT  RAILROAD  COMPANY, 
•[SEAL.]  By  JNO.  H.  WINDER,  President. 

Attest:   HASKLL  THOMAS,  Secretary. 


CHARTER  XLVII. 

LOUISVILLE  AND  NASHVILLE  TERMINAL  COMPAS*'. 

[Union  depot  and  Terminal  facilities  at  Nashville.) 

Property  of,  how  acquired  by  Nashville,  Chattanooga  &  St. 

LOUiS  Railway. — The  Louisville  <fe  Nashville  Terminal  Com- 
pany was  chartered  March  21,  1893,  under  the  acts  of  1893, 
ch.  11,  authorizing  the  incorporation  of  companies  for  the 
purpose  of  acquiring,  constructing,  maintaining,  operating  or 
leasing  to  others,  railroad  terminal  facilities.  The  charter  is 
fully  set  out  further  on  in  this  chapter. 

After  its  organization  and  the  purchase  by  it  of  various 
tracts  of  real  estate  (in  Nashville,  Tenn.,)  it  leased  from  the 
Nashville,  Chattanooga  &  St.  Louis  Railway,  on  April  27, 
1896,  among  other  things,  "all  rights  of  way,  railroad  tracks 
and  property  of  every  other  description  which  the  latter  com- 
pany has  in  and  across  Cedar  street  east  of  the  west  line  of 
Belleville  street,  and  all  rights  of  way,  railroad  tracks  and 
property  of  every  other  description  which  it  has  in  or  across 
Church  street  and  in  or  across  Broad  street  in  Nashville  .  .  . 
including  all  rights  of  way,  ways  and  other  easements,  all 
passenger  and  freight  depot  buildings,  offices,  buildings,  sheds, 
warehouses,  roundhouses,  shops  and  other  buildings,  erections 
and  structures,  all  main  and  side  tracks,  switches,  crossovers 
and  turnouts  and  all  other  terminal  facilities  now  located  upon 
said  premises  or  any  part  thereof.''  The  lease  was  for  999 


558  LOUISVILLE    &    NASHVILLE    TERMINAL    CO. 

years  with  privilege  of  re-leasing  for  another  999  years.  The 
Louisville  &  Nashville  Railroad  Company  joined  in  this  lease, 
as  it  had  certain  rights  and  privileges  in  the  property  under  an 
agreement  with  the  Nashville,  Chattanooga  &  St.  Louis  Kail- 
way,  dated  May  1,  1872,  which  agreement  has  heretofore  been 
set  out  in  this  compilation  on  page  533.  The  lease  was  regis- 
tered in  the  register's  office  of  Davidson  county,  Tenn. ,  in  book 
220,  p.  175. 

On  the  same  day  the  terminal  company  leased,  among  other 
things,  from  the  Louisville  &  Nashville  Railroad  Company, 
for  a  like  period  with  similar  renewal  clause,  "all  the  railroad 
and  right  of  way  on  which  the  same  is  constructed  from  the 
south  line  of  Gay  street  over  the  lots  above  described,  and 
across  Pearl  and  Shankland  and  Cedar  streets  to  the  south 
line  of  Cedar  street  (in  Nashville),  .  .  .  with  the  appurte- 
nances thereto  belonging,  including  all  rights  of  way,  ways, 
and  other  easements."  The  lease  provided  that  the  terminal 
company  should  pay  all  taxes.  The  Nashville,  Chattanooga  & 
St.  Louis  Railway  joined  in  the  lease,  as  the  property  conveyed 
was  acquired  from  it  by  the  terms  of  the  agreement  dated  May 
1,  1872,  above  referred  to.  This  lease  was  registered  in  the 
register's  office  of  Davidson  county,  Tenn.,  in  book  221,  p. 
175,  and  amended  by  lease,  registered  in  book  230,  p.  106. 
After  the  execution  of  these  two  leases  to  it,  the  terminal 
company,  on  June  15,  1896,  re-leased  the  above  described 
property,  together  with  numerous  tracts  of  ground  it  owned 
in  fee,  back  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
and  Louisville  &  Nashville  Railroad  Company  jointly,  for  a 
period  of  999  years.  This  lease  was  registered  in  the  register's 
office  of  Davidson  county,  Tenn.,  book  222,  p.  175,  and  is 
fully  set  out  herein  in  next  chapter.  The  consideration  was 
an  annual  rental  of  four  per  cent,  on  the  actual  cost  of  all 
expenditures  heretofore  made  or  to  be  hereafter  made  by  the 
terminal  company  in  the  purchase  or  other  acquisition  of  said 
premises  or  property,  and  in  the  erection  and  construction  of 
said  improvements  and  all  additions  and  extensions  thereto, 
and  to  all  taxes,  rates,  charges,  and  assessments  that  may  be 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         559 

levied  or  imposed  during  t^ie  lease,  together  with  the  cost  of 
insurance. 

The  terminal  company  is  now  building-  the  new  depot  and  all  termi- 
nal facilities  contemplated.  When  completed  it  will  be  turned  over  to 
the  two  roads  under  the  terms  and  conditions  provided  in  the  lease 
above  mentioned. 

Mortgage  by  terminal  company.— After  the  execution  of 

the  tw6  leases  by  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way and  the  Louisville  &  Nashville  Railroad  Company  to  the 
terminal  company,  as  heretofore  set  out,  the  latter  company, 
on  May  1,  1896,  in  order  to  raise  money  to  construct  the 
proposed  depot,  freight  stations,  freight  yards,  sidetracks, 
switches,  etc.,  contemplated  in  the  charter,  issued  a  mortgage 
on  its  entire  property,  held  both  in  fee  and  by  lease,  to  the 
Manhattan  Trust  Company  to  secure  an  issue  of  two  million 
dollars  fifty-year,  four  per  cent.,  gold,  first  mortgage  bonds, 
of  the  denomination  of  one  thousand  dollars  each.  This  mort- 
gage may  be  found  registered  in  the  register's  office  of  David- 
son county,  Tennessee,  book  216,  p.  411,  and  in  book  233,  p. 
334. 


ORIGINAL    CHARTER    OF    THE   LOUISVILLE   & 
NASHVILLE   TERMINAL   COMPANY. 

[Chartered  under  General  Acts  Tenn.,  1875,  as  amended  by  Acts  1893, 
ch.  11.     See  Shannon's  code,  $  242U.] 

SECTIONI.  Incorporation;  name:  objects;  general  pow- 
ers.— Be  it  knmon,  That  J.  W.  Thomas,  Ed.  Baxter,  W.  G. 
Hutcheson,  M.  H.  Smith,  and  M.  J.  Reedy,  all  of  whom  are 
over  twenty-one  years  of  ago,  are  hereby  constituted  a  body 
politic  and  corporate  by  the  name  and  style  of  the  Louisville  & 
Nashville  Terminal  Company,  for  the  purpose  of  acquiring,  con- 
structing, maintaining,  operating,  or  leasing  to  others,  railroad 
terminal  facilities  for  the  accommodation  of  railroad  passengers 
and  for  handling  and  transferring  railroad  freight. 

Validity  of  charter. — This  charter  was  held  to  be  constitutional  by 
the  supreme  court  of  'f ennessee  in  the  case  of  R\mn  v.  Lnuisvllc  A  Nash- 


560  ORIGINAL    CHARTER    OF    TERMINAL    CO. 

ville  Terminal  Company,  decided  March  15,  1899,  at  Nashville.  The  case 
has  not,  at  this  writing,  been  published  in  the  Tennessee  Reports,  but 
may  be  found  in  vol.  50,  p.  744,  of  the  Southwestern  Reporter,  issued 
May  15,  1899. 

SEC.  2.  General  powers  (Continued).— The  general  powers 
of  said  corporation  are:  To  sue  and  be  sued  by  the  corporate 
name,  to  have  and  use  a  common  seal,  which  it  may  alter  at 
pleasure;  if  no  common  seal,  then  the  signature  of  the  name  of 
the  corporation  by  any  duly  authorized  officer  shall  be  legal 
and  binding;  to  purchase  and  hold  or  receive  by  gift,  in  addi- 
tion to  the  personal  property  owned  by  said  corporation,  any  real 
estate  necessary  for  the  transaction  of  the  corporate  business, 
and  also  to  purchase  or  accept  any  real  estate  in  payment,  or 
part  payment,  of  any  debt  due  to  the  corporation,  and  sell 
realty  for  corporation  purposes;  to  establish  by-laws  and  make 
all  rules  and  regulations  not  inconsistent  with  the  laws  and  the 
constitution  deemed  expedient  for  the  management  of  corpo- 
rate affairs;  to  appoint  such  subordinate  officers  and  agents,  in 
addition  to  the  president  and  secretary  or  treasurer,  as  the 
business  of  the  corporation  may  require;  to  designate  the  name 
of  the  office  and  fix  the  compensation  of  the  officers. 

SEC.  3.  Special  provisions. — The  following  provisions  and 
restrictions  are  coupled  with  said  grant  of  powers:  A  failure 
to  elect  officers  at  the  proper  time  does  not  dissolve  the  corpo- 
ration, but  those  in  office  hold  until  the  election  or  appoint- 
ment and  qualification  of  their  successors.  The  term  of  all 
officers  may  be  fixed  by  the  by-laws  of  the  corporation;  the 
same  not,  however,  to  exceed  two  years.  The  corporation 
may,  by  by-laws,  make  regulations  concerning  the  subscrip- 
tion for,  or  transfer  of  stock;  fix  upon  the  amount  of  capital  to 
be  invested  in  the  enterprise;  the  division  of  the  same  into 
shares;  the  time  required  for  payment  thereof  by  the  sub- 
scribers for  stock;  the  amount  to  be  called  for  at  any  one  time; 
and  in  case  of  failure  of  any  stockholder  to  pay  the  amount 
thus  subscribed  by  him  at  the  time  and  in  the  amounts  thus 
called,  a  right  of  action  shall  exist  in  the  corporation  to  sue 
said  defaulting  stockholder  for  the  same. 

1.  See  3  Hum.,  531;  12  Lea,  252;  4  Cold.,  101. 

2.  The  capital  stock  of  this  company  was  placed  by  by-law  at  8100,000. 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS   RAILWAY.         561 

SEC.  4.  Directors,  quorum  Of^  bOOkS.— The  board  of  direct- 
ors, which  may  consist  of  five  or  more  members,  at  the  option 
of  the  corporation,  to  be  elected  either  in  |)erson  or  by  proxy, 
by  a  majority  of  the  votes  cast,  each  share  representing  one 
vote,  shall  keep  a  full  and  true  record  of  all  their  proceedings, 
and  an  annual  statement  of  receipts  and  disbursements  shall 
be  copied  on  the  minutes,  subject  at  all  times  to  the  inspection 
of  any  stockholder.  The  books  of  the  corporation  shall  show 
the  original  or  subsequent  stockholders,  their  respective  inter- 
ests, the  amount  which  has  been  paid  on  the  shares  subscribed, 
the  transfer  of  stock,  by  and  to  whom  made;  also  other  trans- 
actions in  which  it  is  presumed  a  stockholder  or  creditor  may 
have  an  interest. 

SEC.  5.  Unpaid  StOCk. — The  amount  of  any  unpaid  stock 
due  from  a  subscriber  to  the  corporation  shall  be  a  fund  for 
the  payment  of  any  debts  due  from  the  corporation,  nor  shall 
the  transfer  of  stock  by  any  subscriber  relieve  him  from  pay- 
ment, unless  his  transferee  has  paid  up  all  or  any  of  the  balance 
due  on  said  original  subscription. 

See  10  Pickle  (Tenn.)  154,  608. 

SEC.  6.  Express  and  implied  powers.— By  no  implication  or 
construction  shall  the  corporation  be  deemed  to  possess  any 
powers  except  those  hereby  expressly  given  or  necessarily  im- 
plied from  the  nature  of  the  business  for  which  the  charter  is 
granted,  and  by  no  inference  whatever  shall  said  corporation 
possess  the  power  to  discount  notes  or  bills,  deal  in  gold  or 
silver  coin,  issue  any  evidence  of  debts  as  currency,  buy  and 
sell  any  agricultural  products,  deal  in  merchandise,  or  engage 
in  any  business  outside  the  purpose  of  the  charter. 

SEC.  7.  Charter  may  be  repealed  or  amended.— The  right  is 

reserved  to  repeal,  annul,  or  modify  this  charter.  If  it  is 
repealed,  or  if  the  amendments  proposed,  being  not  merely 
auxiliary  but  fundamental,  are  rejected  by  a  vote  representing 
more  than  half  of  the  stock,  the  corporation  shall  continue  to 
exist  for  the  purpose  of  winding  up  its  affairs,  but  not  to  enter 
upon  any  new  business.  If  the  amendments  or  modifications, 
being  fundamental,  are  accepted  by  the.  corporation  as  afore- 

36 


562  ORIGINAL    CHARTER    OF    L.    &    N.    TERMINAL    CO. 

said,  in  a  general  meeting  to  be  called  for  that  purpose,  any 
minor,  married  woman,  or  other  person  under  disability,  or 
any  stockholder  not  agreeing  to  the  acceptance  of  the  modifica- 
tion, shall  cease  to  be  a  stockholder,  and  the  corporation  shall 
be  liable  to  pay  said  withdrawing  stockholders  the  par  value  of 
their  stock,  if  it  is  worth  so  much;  if  not,  then  so  much  as 
may  be  its  real  value  in  the  market  on  the  day  of  the  with- 
drawal of  said  stockholders  as  aforesaid.  Provided,  That  the 
claims  of  all  creditors  are  to  be  paid  in  preference  to  said  with- 
drawing stockholders. 

See  discussion  under  sec.  34  of  the  charter  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  chapter  I.  herein. 

SEC.  8.  Directors,  powers,  who  to  compose  first  board.— 

A  majority  of  the  board  of  directors  shall  constitute  a  quorum, 
and  shall  fill  all  vacancies  until  the  next  election.  The  first 
board  of  directors  shall  consist  of  the  five  or  more  corporators 
who  shall  apply  for  and  obtain  the  charter. 

SEC.  9.  Corporation  may  borrow  money  and  issue  bonds 

and  mortgages,  When. — The  said  corporation  may  have  the 
right  to  borrow  money  and  issue  notes  or  bonds  upon  the  faith 
of  the  corporate  property,  and  also  to  execute  a  mortgage  or 
mortgages  as  further  security  for  repayment  of  money  thus 
borrowed. 

SEC.  10.  May  condemn  land  or  acquire  it  how,  for  corpor- 
ate purposes,  may  lease  tO  Others.— And  in  addition  to  the 
above  powers  said  corporation  shall  have  the  power  to  acquire 
in  this  or  any  other  state  or  states,  and  at  such  place  or  places 
as  shall  be  found  expedient,  such  real  estate  as  may  be  neces- 
sary, on  which  to  construct,  operate,  and  maintain  passenger 
stations,  comprising  passenger  depots,  office  buildings,  sheds 
and  storage  yards,  and  freight  stations,  comprising  freight 
depots,  warehouses,  offices  and  freight  yards,  roundhouses,  and 
machine  shops;  also  main  and  side  tracks,  switches,  cross-overs, 
and  turnouts,  and  other  terminal  railroad  facilities,  appurte- 
nances, and  accommodations,  suitable  in  size,  location,  and 
manner  of  construction  to  perform  promptly  and  efficiently  the 
work  of  receiving,  delivering,  and  transferring  all  passenger 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         568 

and  freight  traffic  of  railroad  companies  with  which  it  may 
enter  into  contracts  for  the  use  of  its  terminal  facilities  at  such 
place  or  places.  Said  corporation  shall  have  the  power,  by 
purchase,  lease,  or  assignment  of  lease,  to  acquire  and  hold, 
and  to  lease  to  others,  such  real  estate  as  may  be  necessary  for 
the  above  mentioned  purposes  of  its  corporation;  and  it  may 
also  acquire  such  real  estate  by  condemnation,  in  pursuance  of 
the  general  law  authorizing  the  condemnation  of  private 
property  for  works  of  internal  improvement,  as  set  forth  in 
sections  1325  to  1348  both  inclusive  of  the  code  of  1858,  which 
are  as  follows,  viz: 

SEC.  11.  (13*25)  Land  may  be  taken,  how.— [This  section 

together  with  succeeding  sections  of  this  charter  up  to  and  in- 
cluding section  34,  are  the  same  as  sections  10,  to  and  includ- 
ing section  33  of  the  charter  of  the  Decatur,  Chesapeake  & 
New  Orleans  Railway  Company,  which  are  fully  set  out  on 
page  416  to  421  of  this  compilation.  For  economy  of  space 
they  will  not  again  be  copied.] 

Validity  of  charter. — This  charter  held  constitutional  in  case  of  Ryan 
v.  Louisville  &  Nashville  Terminal  Company,  by  supreme  court  of  Ten- 
nessee, March  15, 1899.  Reported  in  Southwestern  Reporter,  vol.  50,  p.  744. 

SEC.  35.  May  construct  tracks  or  depots  across,  under,  or 
over  streets  and  alleys  of  cities  and  towns,  when  and  how.— 

Whenever  it  may  be  necessary,  in  order  to  enable  said  corpora- 
tion to  acquire  and  construct  proper  railroad  terminal  facilities 
in  any  town  or  city,  or  to  connect  such  facilities  with  the  tracks 
of  any  railroad  company  with  whom  said  corporation  may  have 
contracted  to  furnish  such  facilities,  said  corporation,  with  the 
consent  of  the  proper  authorities  of  such  town  or  city,  shall 
have  the  right  to  lay  and  operate  a  track  or  tracks  across  or 
along,  or  over  or  under,  such  of  the  streets  or  alleys  of  such 
town  or  city  as  may  be  necessary  for  that  purpose.  And  said 
corporation  may,  also,  with  such  consent,  construct  such  pas- 
senger or  freight  depots,  or  stations,  across  or  along,  over  or 
under  any  such  street  or  alley,  when  it  shall  be  necessary, 
in  order  to  furnish  proper  railroad  terminal  facilities  in  said 
town  or  city;  but  no  street  or  alley  of  any  town  or  city  shall 


564  ORIGINAL    CHARTER   OF    L.    &    N.    TERMINAL   CO. 

be  obstructed  or  interfered  with  until  the  consent  of  the  proper 
authorities  of  said  town  or  city  shall  have  been  first  obtained. 

SEC.  36.  May  borrow  money,  issue  bonds  and  mortgages, 

"When. — Said  corporation  may,  from  time  to  time,  borrow  such 
sums  of  money  as  may  be  necessary  for  the  acquisition,  con- 
struction, maintenance,  repair,  or  operation  of  such  passenger 
or  freight  depots,  or  stations,  and  other  terminal  facilities  as 
are  above  mentioned,  and  to  issue  and  dispose  of  its  bonds  for 
such  amounts  and  at  such  prices  as  it  may  think  proper,  and  to 
mortgage  its  corporate  property,  rights,  privileges,  and  fran- 
chises for  the  purpose  of  securing  the  same. 

SEC.  37.  May  keep  hotel,  restaurant,  and  news  stands, 

Where. — At  any  place  where  said  railroad  terminal  corporation 
may  acquire  and  construct  passenger  stations,  said  corporation 
may  keep  on  said  premises  a  hotel  or  restaurant,  or  both,  and 
also  a  news  stand. 

SEC.  38.   May  lease  its  property  to  railroad  company, 

When. — The  said  corporation  may  lease  to  any  railroad  com- 
pany or  railroad  companies  its  freight  and  passenger  depots, 
or  stations,  and  its  other  terminal  facilities,  located  at  any 
place  where  the  line  or  lines  of  said  railroad  company  or  com- 
panies may  terminate,  or  through  which  they  may  pass;  and 
such  lease  may  be  upon  such  terms  and  for  such  time  as  may 
be  agreed  upon  by  the  parties. 

SEC.  39.  Such  railroad  companies  may  guarantee  bonds 
or  contracts  of  terminal  company,  when.— Said  railroad  com- 
pany or  companies  may  severally  or  jointly,  or  jointly  and 
severally,  guarantee  the  principal  and  interest  of  such  bonds 
as  may  be  issued  by  said  railroad  terminal  corporation,  and 
may,  in  like  manner,  guarantee  the  performance  of  any  other 
contract  that  said  railroad  terminal  corporation  may  make  in 
regard  to  its  corporate  business. 

SEC.  40.  Each  may  subscribe,  hold,  and  dispose  of  stock  or 
bonds  in  other,  when;  charter  amendable.— Any  such  railroad 

company  or  companies  may  also  subscribe,  hold,  and  dispose 
of  the  capital  stock  or  bonds  which  may  be  issued  by  said  rail- 
road terminal  corporation,  and  said  railroad  terminal  corpora- 


NASHVILLE,  CHATTANOOGA    A    8T.   LOUIS    RAILWAY.         565 

tion  may  acquire,  hold,  and  dispose  'of  the  capital  stock  or 
bonds  of  railroad  companies,  or  of  other  terminal  companies, 
for  the  purpose  alone  of  raising  money  for  the  acquisition, 
construction,  maintenance,  and  repair  of  such  passenger  and 
freight  depots  and  stations,  and  other  terminal  facilities  as 
above  mentioned,  and  not  for  the  purpose  of  speculating  in 
stocks  or  bonds,  or  managing  or  controlling  railroads.  The 
right  is  reserved  to  repeal,  amend,  or  modify  this  charter. 

We,  the  undersigned,  apply  to  the  state  of  Tennessee,  by 
virtue  of  the  laws  of  the  land,  for  a  charter  of  incorporation 
for  the  purposes  and  with  the  powers,  etc.,  declared  in  the 
foregoing  instrument. 

Witness  our  hands,  this  twenty-first  day  of  March,  A.D., 
1893.  J.  W.  THOMAS, 

ED.  BAXTER, 
W.  G.  HUTCHESON, 
M.  H.  SMITH, 
M.  J.  REEDY. 

1.  Acknowledgment. — The   foregoing   charter   was   properly   signed 
and  acknowledged  before  W.  T.  Smith,  clerk  of  county  court  of  David- 
son county,  Tenn.,  March  21,  1893. 

2.  Where  registered. — The  charter  was  properly  registered  in  charter 
book  No.  130,  p.  363-368,  of  Davidson  county,  Tenn.,  March  21,  1893;  and 
in  the  secretary  of  state's  office  March  22,  1893,  in  book  '•  SS,"p.  478;  the 
secretary's  certificate,  with  fac  simile  of  great  seal  of  the  state  of  Ten- 
nessee was  registered  in  Davidson  county,  in  book  130,  p.  368. 


566  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 


CHAPTER  XLVIII. 

LEASE  FROM  LOUISVILLE  &  NASHVILLE  TERMINAL  COMPANY 
TO  NASHVILLE,   CHATTANOOGA  &  ST.  LOUIS  RAILWAY 
AND  LOUISVILLE  &  NASHVILLE  RAILROAD  COM- 
PANY, OF  TERMINAL  FACILITIES,  PROP- 
ERTY,   ETC.,    AT  NASHVILLE. 

LEASE. 

Parties. — This  indenture,  made  this  fifteenth  day  of  June, 
1896,  by  and  between  the  Louisville  &  Nashville  Terminal 
Company,  a  corporation  chartered,  organized,  and  existing 
under  the  laws  of  the  State  of  Tennessee,  and  known  herein- 
after as  the  first  party,  and  the  Louisville  &  Nashville  Railroad 
Company,  a  corporation  chartered,  organized  and  existing 
under  the  laws  of  the  Commonwealth  of  Kentucky,  with  a  right 
of  way  granted  by  the  State  of  Tennessee,  to  construct  and 
operate  a  railroad  in  said  State  of  Tennessee,  and  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  a  corporation  chartered, 
organized,  and  existing  under  the  laws  of  the  State  of  Ten- 
nessee, said  two  last  named  railroad  or  railway  companies  being 
known  hereinafter  as  the  second  parties,  WITNESSETH: 

ARTICLE  1.  That  said  first  party  hath  letten,  and  by  these 
presents  doth  grant,  demise,  and  to  farm  let,  unto  said  second 
parties  and  their  respective  successors  and  assigns,  the  follow- 
ing pieces  or  parcels  of  land  situated  in  the  city  of  Nashville, 
county  of  Davidson,  and  State  of  Tennessee,  and  bounded  and 
described  as  follows,  viz: 

I. 

1.  Description  real  estate  leased. — All  of  lots  numbers  four  (4)  and  five 
(5)  in  the  Cleaves  plan  of  lots,  as  recorded  in  book  21.  page  29,  register's 
office  of  Davidson  county,  said  lots  fronting  ninety  feet  on  the  north 
side  of  Gleaves  street,  and  extending  northwardly  between  parallel 
lines,  one  hundred  and  forty-nine  (149)  feet  more  or  less  to  an  alley, 
they  being  the  same  conveyed  to  E.  C.  Lewis,  agent,  by  M.  L.  Hoyte,  by 
deed  dated  November  26,  1890,  and  recorded  in  book  164,  page  192, 
register's  office  of  Davidson  county. 


NASHVILLE,   CHATTANOOGA    &    ST.  LOUIS    RAILWAY.         56T 

I 

2.  All  of  lots  Nos.  7,  8,  9,  10,   11,  13,  13,  14,  15,   16,  17,  18,   19,  20,  21,  22, 
23,  24,  and  25  in  said  Gleaves  plan  of  lots,  said  lots  fronting'  each  25  feet 
on  the  north  side  of  Gleaves  street,  and  running  back  at  right  angles  to 
said  street,   and  between  parallel  lines  145  feet  to  an  alley,  said  lots 
being  the  same  conveyed  to  E.  C.  Lewis  by  Minnie  Gleaves  by  deed, 
dated  May  16,  1888,  and  registered  in  book  113,  page  72,  register's  office 
of  Davidson  county. 

3.  All  of  lot  No.  16  and  the  north  10  feet  of  lot  No.  17  in  Lunatic  Asy- 
lum plan  of  lots,  as  registered  in  book  No.  21,  page  117,  register's  office 
of  Davidson  county,  said  lot  No.  16  and  part  of  lot  No.  17  fronting  60 
feet  on  the  east  side  of  Magazine  street,  and  running  back  eastwardly 
between  parallel  lines  with  the  south  line  of  Griffin  street  150^'  feet  to 
a  20- foot  alley,  the  north  30  feet  of  said  lot  No.  16  being  the  same  con- 
veyed to  E.  C.   Lewis  by  William  Graves  and  wife  and  W.  W.   Tucker 
and  wife,  by  deed,   dated  September  18,   1890,  registered  in  book  158, 
page  316,  register's  office  of  Davidson  county,  and  the  south  20  feet  of 
lot  No.  16  and  the  north  10  feet  of  lot  No.  17  being  the  same   conveyed 
to  said  Lewis  by  Mary  M.  Tucker  and  husband,  by  deed,  dated  February 
15,  1896,  and  registered  in  book  208,  page  153,  register's  office  of  David- 
son county. 

4.  All  of  lots  Nos.  20,  21,  and  24.  in  said   Lunatic  Asylum  plan,  said 
lots  being  the  same  sold  by  the  state  of  Tennessee,  and  bought  by  E.  C. 
Lewis  of  Murray  &  Reagan,  through  their  trustee,  S.  N.  Henderson,  of 
J.  W.  Bass  and  of  George  K.  Whitworth,  clerk  and  master,  in  the  order 
and  number  of  lots  named,  said  lots  fronting  each  50  feet  on  the  east 
side  of  Magazine  street,  and  running  back  between  parallel  lines  150 
feet,  more  or  less,  to  Overton  street. 

5.  All  of  lot  No.  22  in  said  Lunatic  Asylum  plan,  said  lot  fronting  50 
feet  on  the  west  side  of  Magazine  street,  and  extending  westwardly  be- 
tween parallel  lines  150  }-£  feet  to  a  10-foot  alley,  it  being  the  same  con- 
veyed to  E.  C.  Lewis  by  J.  S.  Cobb  and  wife,  by  deed,  dated  September 
25,  1891,  registered  in  book  157,  page  583,  register's  office  of  Davidson 
county. 

6.  All  of  lot  No.  12  in  said  Lunatic  Asylum  plan,  said  lot  fronting  50 
feet  on  the  east  side  of  Kayne  avenue  and  running  back  between  par- 
allel lines  150  feet  to  a  10-foot  alley,  it  being  the  same  conveyed  to  said 
E.  C.   Lewis  by  John  S.  Arbuthnot  and  wife,  by  deed,  dated  April  5, 
1888,    registered  in   book  158,   page   477,    register's  office  of    Davidson 
county. 

7.  All  of  lot  No.  253  in  McNairy's  addition  to  the  city  of  Nashville, 
as  per  plan  recorded  in  book  9,  page  323,  register's  office  of  Davidson 
county,  said  lot  fronting  50  feet  on  the  north  side  of   Laurel  street,  and 
extending  northwardly  between  parallel  lines  170  feet  to  an  alley,  it 
being  the  same  conveyed  to  said  E.  C.  Lewis  by  J.  W.  Barnes,  by  deed, 
dated  April  3,  1889,  registered  in  book  162,  page  17,  register's  office  of 
Davidson  county. 

8.  All  of  lot  No.  255  and  5  feet  off  the  west  side  of  lot  No.  254  in  said 
McNairy's  addition  to  the  city  of  Nashville,  said  parcel  of  land  fronting 


568  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

55  feet  on  the  north  side  of  Laurel  street,  and  extending1  northwardly 
between  parallel  lines  170  feet  to  an  alley,  it  being  the  same  conveyed 
to  said  E.  C.  Lewis  by  Mary  Stevenson  and  husband,  by  deed,  dated 
August  12,  1890,  registered  in  book  158,  page  205,  register's  office  of 
Davidson  county. 

9.  All  of  lots  Nos.  146,  148,  and  152  in  said  McNairy's  addition,   each 
fronting  50  feet  on  the  south  side  of  Demonbreun  street,  and  extending 
southwardly  between  parallel  lines  175  feet  to  an  alley,  lot  No.  146  being 
the  same  conveyed  to  said  E.  C.  Lewis  by  J.  W.  Simmons,  by  deed,  dated 
January  20,   1890,  registered  in  book  159,   page  225,  register's  office  of 
Davidson  county;  lot  No.   148  being  the  same  conveyed  to  said  E.    C. 
Lewis  by  John   Kirkman,  trustee  of  Catherine   H.    Pritchett,   by  deed, 
dated  June  1,  1888,  registered  in  book  208,  page  425,  register's  office  of 
Davidson  county;  lot  No.    152  being  the  same  conveyed  to  said  E.  C. 
Lewis  by  John  W.  Simmons,  by  deed,   registered  in  book  159,  page  530, 
register's  office  of  Davidson  county. 

10.  All  of  lots  Nos.  149,  151,  and  153  of  said  McNairy's  addition  to  the 
city  of  Nashville,  each  fronting  50  feet  on  the  north  side  of  Demonbreun 
street,  and  extending  northwardly  between  parallel  lines  166  feet  to  an 
alley;  lot  No.  149  being  the  same  conveyed  to  said  Lewis  by  Mrs.  Ann 
Forde,  Robert  A.  Forde,  Helen  Forde,  Stille  F.  Forde,  M.  Forde,  and 
H.  W.  Forde,  by  deed  dated  February  9,   1888,  registered  in  book  158, 
page  260,  register's   office  of   Davidson  county;   lot  No.  151   being  the 
same  conveyed  to  said  Lewis  by  J.  J.  Freeman  and  wife  by  deed  dated 
February  23,  1888,  registered  in  book  159,  page  108,  register's  office  of 
Davidson  county;   lot  No.  153  being  the  same  conveyed  to  said  Lewis  by 
S.  A.  Cunningham  by  deed  dated  April  2,  1888,  registered  in  book  117, 
page  258,  register's  office  of  Davidson  county. 

11.  All  of  lots  Nos.  82  and  84  in  said  McNairy's  addition  to  the  city  of 
Nashville,  each  of  said  lots  fronting  50  feet  on  the  north  side  of  McGav- 
ock  street,  and  extending  northwardly  between  parallel  lines  169  feet 
to  an  alley;  lot  No.  82  being  the  same  conveyed  to  said  Lewis  by  William 
P.  Watson  by  deed  dated  March  27,  1888,  registered  in  book  159,  page 
108,  register's  office  of  Davidson  county;  lot  No.  84  being  the  same  con- 
veyed to  said  Lewis  by  J.  T.  Rundle  and  wife  by  deed  dated  Februai'y 
29,  1888,  registered  in  book   159,  page   12,   register's  office  of  Davidson 
county. 

12.  All  of  lots  Nos.  7,  8,  10,  and  12  of  said  McNairy's  addition  to  the 
city  of  Nashville,  each  fronting  50  feet  on  the  south  side  of  IJroad  street, 
and  extending  southwardly  between  parallel  lines  169  feet  to  an  alley; 
lot  No.  7  being  the  same  conveyed  to  said  Lewis  by  Peter  McMeekin  and 
wife  by  deed  dated  December  31,  1892,  registered  in  book  208,  page  427, 
register's  office  of  Davidson  county;  lot  No.  8  being  the  same  conveyed 
to  said  Lewis  by  Valentine  Steinhauer  and  wife  by  deed  dated  April  6, 
1889,    registered   in   book   159.   page   203,    register's   office   of   Davidson 
county;  lot  No.  10  being  the  same  conveyed  to  said  Lewis  by  Rebecca  G. 
Lindsay  and  husband  by  deed  dated  March  28,  1889,  registered  in  book 
158,  page  533,  register's  office  of  Davidson  county;  and  lot  No.  12  being 


NASHVILLE,  CHATTANOOGA    «fc   ST.   LOUIS    RAILWAY.  ."•'•!• 

the  same  conveyed  to  said  Lewis  by  A.  VV.  Harris,  trustee  of  Catherine 
II.  1'ritchett  and  husband,  by  deed  dated  September  16,  1891,  and  regis- 
tered in  book  203,  page  423,  register's  office  of  Davidson  county. 

13.  All  of  lots  Nos.  208  and  209  of  said  McNairy's  addition  to  the  city 
of  Nashville,  each  fronting  50  feet  on  the  south  side  of  Porter  street, 
and  extending  southwardly  between  parallel  lines  175  feet  to  an  alley, 
they  being  the  same  conveyed  to  said  Lewis  by  S.  A.  Cunningham,  John 
A.  Payne,  and  L.  D.  Palmer,  by  deed  dated  September  10,  1890,  registered 
in  book  156,  page  581,  register's  office  of  Davidson  county. 

14.  A  lot  or  parcel  of  land,  being  a  part  of  lot  No.  124  in  Hynes'  addi- 
tion to  the  city  of  Nashville,  a  plan  of  which  is  recorded  in  the  office  of 
the  clerk  and  master  of  the  chancery  court  at  Nashville,  Tenn.,  minute 
book  "B,"  page   85,  to  which   special  reference  is  hereby  made;  said 
lot  or  parcel  of  land  fronting  39>g  feet  on  the  east  line  of  McC'reary 
street,  measured  northwardly  from  the  north  line  of  Grundy  street,  the 
width  of  said  parcel  of  land  in  the  rear  being  35  %  feet,  measured  north- 
wardly from  said  north  line  of  Grundy  street,  the  depth  of  said  lot  or 
parcel  of  land,  measured  through  the  center  thereof,  being  145  feet;  it 
being  the  same  conveyed  to  E.  C.  Lewis  by  C.  C.  Christopher  by  deed 
dated  June  25,  1892,  registered  in  book  No.  185,  page  92,  register's  office 
of  Davidson  county. 

15.  All  of  lots  Nos.  122  and  123  in  said  Hynes'  addition  to  the  city  of 
Nashville,  said  lots  fronting  each  79  feet  on  the  east  side  of  McCreary 
street,  beginning  on  the  east  side  of  said  street  140  feet  from  the  south 
line  of  Church  street;  thence  extending  southwardly  along  the  east  side 
of  McCreary  street  158  feet,  more  or  less;  thence  ea-stwardly  145  feet  to 
the  rear  line  of  said  lots;  thence  northwardly  152  feet  to  the  southeast 
corner  of  lot  No.  120;  thence  westwardly  along  the  south  line  of  lots 
120  and  121,  145  feet,  to  the  point  of  beginning;  being  the  same  lots  con- 
veyed to  E.  C.  Lewis  by  S.  M.  Douglas  and  wife  by  deed  dated  January 
20,  1891,  registered  in  book  No.  208,  page  422,  register's  office  of  Davidson 
county. 

16.  A  lot  or  parcel  of  land,  bounded  and  described  as  follows:  Begin- 
ning at  the  southeast  corner  of  Cedar  and  Walnut  streets,  thence  extend- 
ing in  a  southerly  direction  with  the  east  line  of  Walnut  street  121% 
feet;  thence  eastwardly,  parallel  with  the  south  line  of  Cedar  street,  130 
feet;  thence  northwardly,  parallel  with  the  east  line  of  Walnut  street, 
121%  feet  to  the  south  line  of  Cedar  street;  thence  with  the  south  line  of 
Cedar  street  westwardly  130  feet  to  the  point  of  beginning:  the  west  30 
feet  of  said  tract  fronting  121%  feet  on  the  east  line  of  Walnut  street, 
being  the  same  conveyed  to  E.  C.  Lewis  by  Andrew  Jackson,  by  deed 
dated  March  4,  1890,  legistered  in  book  208,  page  420,  register's  office  of 
Davidson  county;  the  remainder  of  said  tract  fronting  100  feet  on  the 
south  side  of  Cedar  street,  and  extending  southwardly  121%  feet,  being 
the  same  conveyed  to  said  Lewis  by  R.  L.  Weakley  by  deed  dated  March 
8,  1890,  registered  in  book  159,  page  529,  register's  office  of  Davidson 
county. 


570  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

17.  Two  tracts  or  parcels  of  land,  bounded  and  described  as  follows: 
The  first  beginning  at  a  point  on  the  north  side  of  Cedar  street,  south- 
east corner  of  the  land  owned  by  John  Corcoran's  heirs,  said  corner 
being  71.6  feet  more  or  less  east  of  the  east  line  of  Belleville  street; 
thence  extending  in  an  easterly  direction  with  the  north  line  of  Cedar 
street  66}^  feet  to  an  iron  post,  southwest  corner  of  the  land  purchased 
by  the  Louisville  &  Nashville  Railroad  Company  from  B.  B.  Leake,  by 
deed  dated  the  sixth  day  of  June,  1872;  thence  in  a  northerly  direction 
with  the  west  line  of  said  railroad  company's  property  270  feet  to  the 
south  line  of  Shankland  street;  thence  in  a  westerly  direction  with  the 
south  line  of  Shankland  street  35  feet;  thence  in  a  southerly  direction 
parallel  with  said  railroad  company's  west  line,  120  feet;  thence  in  a 
westerly  direction  parallel  with  the  north  line  of  Cedar  street  31%  feet 
to  the  northeast  corner  of  land  belonging  to  the  John  Corcoran  heirs; 
thence  in  a  southerly  direction  parallel  with  said  railroad  company's 
west  line,  150  feet  to  the  point  of  beginning. 

The  second  beginning  at  a  point  on  the  north  line  of  Cedar  street, 
southwest  corner  of  lot  belonging  to  Sarah  Crahan;  thence  extending  in 
a  northerly  direction  with  the  west  line  of  the  lot  of  said  Sarah  Crahan 
270  feet  to  the  south  line  of  Shankland  street;  thence  in  a  westerly 
direction  with  the  sputh  line  of  Shankland  street  88  feet,  more  or  less, 
to  the  east  line  of  the  land  purchased  by  the  Louisville  &  Nashville 
Railroad  Company  from  B.  B.  Leake,  by  deed,  dated  sixth  day  of  June, 
1872;  thence  in  a  southerly  direction  with  the  east  line  of  said  railroad 
company's  land  90  feet  to  the  north  line  of  the  land  purchased  by  J.  W. 
Thomas,  agent,  from  Michael  Quinn  and  wife,  by  deed,  dated  the 
twenty -first  day  of  September,  1886;  thence  in  an  easterly  direction  with 
the  north  line  of  said  lot  29  feet,  more  or  less,  to  the  northeast  corner 
of  the  same;  thence  in  a  southerly  direction  with  the  east  line  of  said 
lot  180  feet,  more  or  less,  to  the  north  line  of  Cedar  street;  thence  in  an 
easterly  direction  with  the  north  line  of  Cedar  street;  thence  in  an 
easterly  direction  with  the  north  line  of  Cedar  street  59  feet,  more  or 
less,  to  the  point  of  beginning;  said  two  tracts  being  the  same  conveyed 
to  E.  C.  Lewis  by  Andrew  Jackson,  by  deed,  dated  March  4,  1890,  regis- 
tered in  book  208,  page  420,  register's  office  of  Davidson  county. 

Being  all  the  pieces  or  parcels  of  land,  with  their  appurtenances, 
which  were  conveyed  to  the  terminal  company  by  E.  C.  Lewis  and 
Pauline  D.  Lewis,  his  wife,  by  deed,  dated  the  thirty-first  day  of  March, 
1896,  registered  in  book  207,  page  481,  register's  office  of  Davidson 
county. 

II. 

1.  Description  of  real  estate  leased  (continued). — All  of  lots  Nos.  81 
and  83  in  McNairy's  addition  to  the  city  of  Nashville,  each  fronting  50 
feet  on  the  south  side  of  McGavock  street  and  extending  southwardly 
between  parallel  lines  166  feet  to  an  alley;  also  all  of  lots  145  and  147 
in  said  addition,  each  fronting  50  feet  on  the  north  side  of  Demonbreun 
street,  and  extending  northwardly  between  parallel  lines  166  feet  to  an 


NASHVILLE,   CHATTANOOGA    A    ST.   LOUIS    RAILWAY.         571 

alley;  also  a  triangular-shaped  tract  of  land,  composed  of  lots  Nos.  294, 
295,  296,  and  329  in  said  McNairy's  addition  to  the  city  of  Nashville, 
said  tract  fronting  208  feet  on  the  south  side  of  Laurel  street  and  ex- 
tending southwardly  to  Kayne  avenue,  the  west  line  of  said  tract  being 
parallel  with  McNairy  street,  said  lots  or  parcels  of  land  being  the 
same  conveyed  to  J.  W.  Thomas,  agent,  by  Alfred  Kayne,  by  deed, 
dated  August  14,  1890,  registered  in  book  195,  page  272,  register's  office 
of  Davidson  county. 

2.  All  of  lot  No.  143  in  McNairy's  addition  to  the  city  of  Nashville' 
fronting  50  feet  on  the  north  side  of  Demonbreun  street,  and  extending 
northwardly  between  parallel  lines  166  feet  to  an  alley;  also,  an  irreg- 
ular tract  of  land  composed  of  lots  250  and  251  in  said  addition,  bounded 
and  described  as  follows:    Beginning  at  a  point  on  the  north  line  of 
Laurel  street,  at  the  boundary  line  between  lots  251  and  252,  thence 
extending  in  a  northerly  direction,  with  said  boundary  line,  170  feet  to 
an  alley;   thence  in  an  easterly  direction,  with  the  south  line  of  said 
alley,  120  feet,  more  or  less,  to  the  west  line  of  Kayne  avenue;  thence  in 
a  southerly  direction,  with  the  west  line  of  Kayne  avenue,  to  the  north 
line  of  Laurel  street;  thence  in  a  westerly  direction,  with  the  north  line 
of  Laurel  street,  to  the  point  of  beginning;  said  lots  or  parcels  of  land 
being  the  same  conveyed  to  J.  W.  Thomas,  agent,  by  Alfred  Kayne  by 
deed  dated  July  8,  1890,  registered  in  book  196,  page  232,  register's  office 
of  Davidson  county. 

3.  All  of  lot  No.  150  in  McNairy's  addition  to  the  city  of  Nashville, 
'fronting  50  feet  on  the  south  side  of  Demonbreun  street,  and  extending 
southwardly  between  parallel  lines  175  feet  to  an  alley,  it  being  the 
same  conveyed  to  J.  W.  Thomas,  agent,  by  Alfred  Kayne  by  deed  dated 
September  13,  1890,  and  registered  in  book  196,  page  234,  register's  office 
of  Davidson  county. 

4.  All  of  lot  No.  13  in  McNairy's  addition  to  the  city  of  Nashville, 
fronting  50  feet  on  the  north  side  of  Broad  street,  and  extending  north- 
wardly between  parallel  lines  175  feet,  more  or  less,  to  an  alley,  it  being 
the  same  conveyed  to  J.  W.  Thomas,  agent,  by  the  McGavock  «fe  Mt. 
Vernon  Horse  Railroad  Company  by  deed  dated  October  30,  1890,  regis- 
tered in  book  195,  page  286,  register's  office  of  Davidson  county. 

5.  All  of  lots  Nos.  2  and  3  in  J.  E.  Gleaves'  addition  to  the  city  of 
Nashville,  as  recorded  at  page  116,  plan  book  of  the  chancery  court  at 
Nashville,  Tennessee,  and  at  page  29  of  book  21,  register's  office  of  Da- 
vidson county;  said  lot  No.  2  fronting  180  feet,  more  or  less,  on  the 
north  side  of  Gleaves  street,  and  lot  No.  3  fronting  50  feet  on  the  same 
side  of  said  street,  and  adjoining  said  lot  No.  2  on  the  west,  both  lots 
running  back  northwardly  to  the  line  of  the  Nashville,  Chattanooga  & 
St.  Louis  Railway's  land,  and  are  of  irregular  depths,  they  being  the 
same  conveyed  to  J.  W.  Thomas,  agent,  by  Minnie  Gleaves  by  deed  dated 
February  5,  1886,  registered   iu   book  93,  page  329.  register's  office  of 
Davidson  county. 

6.  All  of  the  tract  of  land  known  as  lot  No.  142,  of  McNairy's  addition 
to  the  city  of  Nashville,  as  it  appears  of  record  in  the  register's  office  of 


572  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

Davidson  county,  book  9,  page  328,  bounded  and  described  as  follows: 
Beginning  at  the  intersection  of  the  south  line  of  Demonbreun  street, 
with  what  was  originally  the  west  line  of  the  Middle  Franklin  turn- 
pike, running  thence  westwardly  with  the  south  line  of  Demonbreun 
street  148  feet;  thence  southwardly,  parallel  with  McNairy  sti-eet,  175 
feet  to  an  alley;  thence  eastwardly  along  said  alley  32  feet  to  what  was 
originally  the  west  line  of  said  Middle  Franklin  turnpike;  thence  north- 
wardly with  what  was  originally  the  west  line  of  said  turnpike,  to  the 
point  of  beginning;  it  being  the  same  tract  or  parcel  of  land  conveyed  to 
said  J.  W.  Thomas,  agent,  by  E.  C.  Lewis,  by  deed  registered  in  book  83, 
page  428,  register's  office  of  Davidson  county. 

7.  All  of  lots  139  and  140,  in  McNairy's  addition  to  the  city  of  Nash- 
ville, each  fronting  50  feet  on  the  north  side  of  Demonbreun  street,  and 
extending  northwardly  between  parallel  lines  to  an  alley;  also  all  of 
lot  No.  67  in  said  addition,  fronting  50  feet  on  the  south  line  of  Mc- 
Gavock  street,  and  extending  southwardly  between  parallel  lines  to  an 
alley,  said  lots  being  the  same  conveyed  to  J.  W.  Thomas,  by  Amanda 
J.  Porter,  by  deed  dated  November  2,  1881,  registered  in  book  175,  page 
145,  register's  office  of  Davidson  county. 

8.  All  of  lot  No.  141,  in  McNairy's  addition  to  the  city  of  Nashville, 
fronting  50  feet  on  the  north  side  of  Demonbreun  street,  and  extending 
northwardly  between  parallel  lines  166  feet  to  an  alley,  it  being  the 
same  conveyed  to  J.  W.  Thomas,  agent,  by  Henry  Blackburn  et  al.,  by 
deed  dated  April,    1884,  registered  in  book  83.  page  582,  register's  office 
of  Davidson  county. 

9.  All  of  lots  Nos.  75,  77,  and  79,  in  McNairy's  addition  to  the  city  of 
Nashville,  each  fronting  50  feet  on  the  south  side  of   McGavock  street, 
and  extending  southwardly  between  parallel  lines  166  feet  to  an  alley; 
also  lot  No.  78  in  said  addition,  fronting  50   feet  on  the  north  side  of 
McGavock  street,  extending  northwardly  between  parallel  lines  to  an 
alley;  also  lot  No.  4  in  said  addition,  fronting  50  feet  on  the  south  line  of 
Broad  street,  and  extending  southwardly  between  parallel  lines  to  an 
alley;  said  lot  No.  75  being  the  same  conveyed  to  J.  VV.  Thomas,  agent, 
by  Theo.    Robertson  and  wife,  by  deed  dated   November  21,   1882,  and 
registered  in  book  75,  page  619,  register's  office  of  Davidson  county;  said 
lots  4,  77,  and   78,  being  the  same  conveyed  to  said  J.    W.  Thomas  by 
Amanda  J.  Porter  by  deed  dated  January  3,  1882,  registered  in  book  71, 
page  268;  lot  79,  being  the  same  conveyed   to  said  J.  W.  Thomas,  agent, 
by  Norman  Kirkman  by  deed  dated  April  14,  1884,  registered  in  book  83, 
page  585,  register's  office  of  Davidson  county. 

10.  All  of  lots  Nos.  66,  68,  70,  72,  74,  and  76  of  McNairy's  addition  to  the 
city  of  Nashville,  each  fronting  50  feet  on  the  north  side  of  McGavock 
street,  and  extending  northwardly  between  parallel  lines  to  an  alley; 
lots  66,  68,  and  70  being  the  same  conveyed  to  J.  W.  Thomas  by  David 
Grewar  and  wife  and   Nora  Moore,  by  deed,  dated  November  7,   1881, 
registered  in  book  70,  page  511,  and  by  deed  to  J.  W.  Thomas  from  J.  N. 
Bertheol  and  wife,  by  deed,  dated  December  14,  3881,  registered  in  book 
71,  page  140,  and  by  deed  to  J.  W.  Thomas,  agent,  from  Catherine  de  la 


NASHVILLE,  CHATTANOOGA    A    ST.   LOUIS    RAILWAY.        573 

Hay,  by  deed,  dated  April,  1882,  and  registered  in  book  72,  page  299, 
and  to  J.  W.  Thomas  by  Robert  Ewing,  clerk  and  master,  by  deed,  dated 
June  15.  1882,  registered  in  book  74,  page  302,  register's  office  of  David- 
son county;  lots  72  and  74  being  the  same  conveyed  to  J.  W.  Thomas, 
agent,  by  T.  W.  Wrenne,  clerk  and  master,  by  deed,  dated  March  10, 
1884,  registered  in  book  83,  page  284,  register's  office  of  Davidson  county, 
and  lot  No.  76  being  the  same  conveyed  to  said  J.  Wt  Thomas,  agent,  by 
Thomas  W.  Wrenne,  clerk  and  master,  by  deed,  dated  January  13,  1885, 
registered  in  book  87,  p.  122,  register's  office  of  Davidson  county. 

11.  Lots  1,  2,  3,  5,  and  6  in  McNairy's  addition  to  the  city  of  Nash- 
ville, each  fronting  50  feet  on  the  south  side  of  Broad  street,  and  ex- 
tending southwardly  between  parallel  lines  175  feet  to  an  alley;  lot  No. 
1  being  the  same  conveyed  to  J.  W.  Thomas  by  H.  H.  Smith  and  wife, 
by  deed,  dated  December  14,  1881,  registered  in  book  71,  page  141,  regis- 
ter's office  of  Davidson  county;  lots  2  and  3  being  the  same  conveyed  to 
J.    \\.   Thomas  by  the   Nashville   Commercial  Insurance  Company,  by 
deed,  dated  October  28,  1881,  and  recorded  in  book  70.  page  45U.  regis- 
ter's office  of  Davidson  county;  lots  Nos.  5  and  6  being  the  same  conveyed 
to  J.  W.  Thomas,  agent,  by  A.   B.   Tavel,  by  deed,  dated   April  9,  1884, 
registered  in  book  83,  page  584,  register's  office  of  Davidson  county. 

12.  A  tract  or  parcel  of  land  situated  in  Hines'  addition  to  the  city  of 
Nashville,  bounded  and  described  as  follows:     Beginning  at  a  point  no 
the  east  line  of   McCreary  street   235   feet  north   of  the   north   line  of 
Church   street;    thence   extending   in   a    northerly   direction   with   the 
east  line  of  McCreary  street  250  feet;  thence  eastvvardly  145  feet;  thence 
southwardly,  parallel  with  McCrcary  street,  250  feet;  thence  westwardly 
145  feet  to  the  point  of  beginning.     The  south  50  feet  of  said  tract  being 
the  same  conveyed  to  J.  W.  Thomas,  agent,  by  Lewis  P.  Holmes,  by 
deed   registered   in   book    149,  page   559,    register's  office   of   Davidson 
county;  the  adjoining  50  feet  on  the  north  being  the  same  conveyed  to 
J.    W.  Thomas,  agent,   by  Thomas  S.   Weaver,  clerk   and    master,    and 
R.  W.  Turner,  by  deed  dated  February  28,  1896.  and  registered  in  book 
208,  page  200,  register's  office  of  Davidson  county;  the  remainder  of  said 
tract  being  the  same  conveyed  to  J.  W.  Thomas,  agent,  by  B.  F.  Lester, 
by  deed  dated  September  18,  1891,  registered  in  book  11,  page  368,  regis- 
ter's office  of  Davidson  County. 

13.  A  lot  or  parcel  of  land,  being  portions  of  lots  26  and  27  of  John 
Cockrell's  subdivision  of  Academy  out-lot,  as  subdivided  and  sold  by  the 
Chancery  court  of  Franklin,  Tennessee,  after  his  death,  bounded  and 
described  as  follows:     Beginning  at  a  point  on  the  north  line  of  Cedar 
street  40  feet  west  of  the  southeast  corner  of  lot  26;  thence  running  north- 
wardly, parallel  with  Bellville  street,  180  feet;  thence  east wardly,  parallel 
with  Cedar  street,  40  feet;  thence  southwardly,  parallel  with  Bellville 
street,    180  feet  to  the  north  line  of  Cedar  street;  thence  westwardly 
with  the  north  line  of  Cedar  street  to  the  point  of  beginning;  said  tract 
being  the  same  conveyed  to  J.  W.  Thomas,  agent,  by  Michael  Quinn  and 
wife,  by  deed  dated  September  21,  1886,  registered  in  book  96,  page  438, 
register's  office  of  Davidson  county.     Being  all  the  pieces  or  parcels  of 


574  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

land,  with  their  appurtenances,  which  were  conveyed  to  the  terminal 
company  by  John  W.  Thomas,  agent,  and  John  W.  Thomas  and  Evalena 
DeBow  Thomas,  his  wife,  by  deed  dated  the  27th  day  of  March,  1896, 
registered  in  book  207,  page  487,  register's  office  of  Davidson  county. 

IK. 

1.  Description  of  real  estate  leased  (continued). — Lot  No.  206,  in  Mc- 
Nairy's  addition  to  the  city  of  Nashville,  as  shown  by  plan  recorded  in 
book  9,  page  323,  register's  office  of  Davidson  county,  said  lot  fronting 
100  feet,  more  or  less,  on  the  south  side  of  Grundy  street,  and  extending 
southwardly  between,  parallel  lines  to  Porter  street,  it  being  the  same 
conveyed  to  M.  H.  Smith,  agent,  by  the  Cumberland  Electric  Light  and 
Power  Company,  by  deed  dated    December  5,    1894,   and  registered   in 
book  195,  page  269,  register's  office  of  Davidson  county. 

2.  A  lot  or  parcel  of  land,  being  a  portion  of  the  Fairfax  estate,  and 
bounded  and  described  as  follows:     Beginning  at  a  point  on  the  south 
line  of  Cedar  street,  463  feet  eastwardly  from  the  east  line  of  McCreary 
street,  said  beginning  point  being  the  northwest  corner  of  the  property 
belonging  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  thence 
running  westwardly  along  the   south  line  of  Cedar  street  321%   feet; 
thence  in  a  southerly  direction  parallel  with  McCreary  street,  140  feet  to 
an  alley;  thence  in  an  easterly  direction  with  said  alley  83%  feet  to  the 
east  line  of  Hynes'  addition  to  the  city  of  Nashville;  thence  southwardly 
with  the  east  line  of  said  Hynes'  addition  524  feet  more  or  less,  to  the 
southeast  corner  of  lot  114  in  said  addition,  better  known  as  the  "Church 
lot;"  thence  eastwardly  165.4  feet  to  the  west  line  of  the  property  of  the 
Nashville,  Chattanooga  &  St.  Louis  Railway,  thence  northwardly  with 
said  west  line  463%  feet  to  the  point  of  beginning. 

3.  A  lot  or  parcel  of  land  beginning  at  a  point  on  the  south  line  of 
Cedar  street,    111%    feet  eastwardly  from  the  east  line  of   McCreary 
street;  thence  extending  in  a  westerly  direction  with  the  south  line  of 
Cedar  street  61%   feet;  thence   in  a  southerly   direction   parallel  with 
McCreary  street  140  feet  to  an  alley;  thence  eastwardly  with  said  alley 
61%  feet;  thence  northwardly  parallel  with  McCreary  street  140  feet  to 
the  point  of  beginning;  said  tract  of  land,  Nos.  2  and  3,  being  the  same 
conveyed  to  the  said  M.   H.  Smith  by  Mattie  F.  Lusk,  by  deed,  dated 
March  23,  1893,  registered  in  book  208,  page  418,  register's  office  of  Da- 
vidson county. 

4.  A  lot  or  parcel  of  land,  being  a  part  of  lots  Nos.  8  and  7  in  Hynes' 
addition  to  the  city  of  Nashville,  plan  of  which  is  recorded  in  book  No. 
1  of  the  chancery  court  of  Davidson  county,  page  21,  and  in  minute  book 
"B,"  page  85,   of   said  court.     Said   lot,    more   particularly   described, 
begins  at  the  northwest  corner  of  lot  No.   8,  the  intersection  of  the  east 
line  of  McCreary  street  with  the  south  line  of  a  20-foot  alley,  said  north- 
west corner  also  being  140  feet  northwardly   from  the  north  line  of 
Hynes  street;  thence  running  in  an  easterly  direction  along  the  south 
line  of  said  alley  100  feet  to  a  point  in  the  north  boundary  line  of  lot  No. 
7  in  said  Hynes'  addition;  thence  parallel  with   McCreary  street  south- 


NASHVILLE,   CHATTANOOGA    A    8T.   LOUIS    RAILWAY.         575 

wardly  40  feet,  thence  in  a  westerly  direction  parallel  with  said  alley 
100  feet  to  the  east  line  of  McCreary  street,  thence  in  a  northerly  direc- 
tion with  the  east  line  of  McCreary  street  40  feet  to  the  place  of  begin- 
ning; said  lot  or  parcel  of  land  being  the  same  conveyed  to  said  M.  II. 
Smith  by  Mary  Ryan,  by  deed,  dated  May  25,  1893,  registered  in  book 
181,  page  199,  register's  office  of  Davidson  county. 

5.  A  lot  or  parcel  of  land  fronting  80  feet,  more  or  less,  on  the  north 
line  of  Pearl  street,  bounded  on  the  west  by  the  line  of  Pat  Cummins, 
on  the  east  by  the  land  of  the  Louisville  &  Nashville  Railroad  Company, 
upon  which  a  trestle  is  situated,  and  on  the  north  by  a  10-foot  alley,  it 
being  the  same  conveyed  to  said  M.  H.  Smith,  agent,  by  E.  J.  Plummer 
and  wife,  by  deed  dated  May  3,  1893,  registered  in  book  No.  179,  page 
291,  register's  office  of  Davidson  county. 

fi.  A. lot  or  parcel  of  land,  being  the  western  15  feet  of  lot  No.  5,  and 
all  of  lot  No.  7  in  the  B.  M.  Barnes  plan,  fronting  45%  feet  on  the  south 
side  of  Gay  street,  and  extending  southwardly,  between  parallel  lines, 
96%  feet  to  an  alley,  it  being  the  same  conveyed  to  M.  H.  Smith,  agent, 
by  M.  Whitfield  and  wife,  by  deed  dated  May  8,  1893,  registered  in  book 
No.  178,  page  409,  register's  office  of  Davidson  county. 

7.  The  south  37%  feet  of  lot  No.  19  in  the  Lunatic  Asylum  subdivision 
of  the  city  of  Nashville,  fronting  37%  feet  on  the  west  side  of  Magazine 
street,  and  extending  westwardly  between  parallel  ilnes  150  feet  to  an 
alley,  it  being  the  same  conveyed  to  M.  H.  Smith,  agent,  by  Robert 
Rodes  and  wife,  by  deed  dated  4th  day  of  February,  1894,  and  registered 
in  book  No.  186,  page  415,  registei 's  office  of  Davidson  county.  Being 
all  of  the  pieces  or  parcels  of  land,  with  their  appurtenances,  which 
were  conveyed  to  the  terminal  company  by  M.  H.  Smith  and  Annette 
Smith,  his  wife,  by  deed  dated  the  25th  day  of  March,  1896,  registered 
in  book  207,  page  493,  register's  office  of  Davidson  county. 

IV. 

1.  Description  of  real  estate  leased  (continued). — All  of  lot  No.  26  in 
the  Lunatic  Asylum  plan  of  lots  in  Nashville,  Tenn.,  registered  in  book 
21,  page  117,  register's  office  of  Davidson  county,  to  which  reference  is 
hereby  made;   said  lot  fronting  50  feet  on  the  west  side  of  Magazine 
street,  and  extending  westwardly  between  parallel  lines  150%  feet  to 
an  alley,  it  being  the  same  conveyed  to  G.  Stritch  by  Nannie  E.  Port- 
wood  by  deed  dated  September  23,  1890,  registered  in  book  14«,  page 
478,  register's  office  of  Davidson  county. 

2.  All  of  that  part  of  lot  No.  254  in  McNairy's  addition  to  the  city  of 
Nashville  bounded  and  described  as  follows:     Beginning  at  a  point  in 
the  north  line  of  Laurel  street  and  on  the  division  line  between  lota 
253  and  234  in  said  addition;  thence  extending  in  a  westerly  direction, 
with  the  north  line  of  Laurel  street,  45  feet;  thence  northwardly,  paral- 
lel with  said  division  line,  170  feet  to  an  alley:  thence  eastwardly,  with 
said  alley,  45  feet  to  said  division  line;  thence  southwardly,  with  said 
division  line,  170  feet  to  the  point  of  beginning;  it  being  the  same  con- 


576  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

veyed  to  said  G.  Stritch  by  James  Powers  and  wife  by  deed  dated  No- 
vember 19,  1889,  registered  in  book  157,  page  540,  register's  office  of 
Davidson  county.  Being  all  the  pieces  or  parcels  of  land,  with  their 
appurtenances,  which  were  conveyed  to  the  terminal  company  by 
G.  Stritch  and  Katie  Stritch,  his  wife,  by  deed  dated  the  thirtieth  day 
of  March,  1896,  registered  in  book  207,  page  496,  register's  office  of 
Davidson  county. 

V. 

1.  Description  of  real  estate  leased  (continued). — Lot  No.  144  of  Mc- 
Nairy's  addition  to  the  city  of  Nashville,  as  recorded  in  plan  book  9.  page 
323,  register's  office  of  Davidson  county,  to  which  reference  is  hereby 
made;  said  lot  fronting  50  feet  on  the  south  side  of  Demonbreun  street, 
and  running  southwardly  between  parallel  lines  175  feet  to  an  alley,  it 
being  the  same  conveyed  to  said  J.  W.  Simmons  by  W.  M.  Baxter  and 
wife  by  deed  dated  March  22,  1889,  registered  in  book  208,  page  417, 
register's  office  of  Davidson  county;  being  the  piece  or  parcel  of  land, 
with  its  appurtenances,  conveyed  to  the  terminal  company  by  J.  W. 
Simmons  and  Martha  Simmons,  his  wife,  by  deed  dated  the  thirty-first 
day  of  March,  1896,  registered  in  book  207,  page  497,  register's  office  of 
Davidson  county. 

VI. 

Description  of  real  estate  leased  (continued). — Lot  No.  85  in  Mc- 
Nairy's  addition  to  the  city  of  Nashville,  plan  of  which  is  recorded  in 
book  9  page  323.  register's  office  of  Davidson  county,  said  lot  fronting  50 
feet  on  the  &outh  side  of  McGavock  street,  and  extending  southwardly, 
between  parallel  lines,  166  feet  to  an  alley.  Being  the  piece  or  parcel  of 
land,  with  its  appurtenances,  conveyed  to  the  Terminal  Company  by 
Norman  Kirkman  and  Nellie  M.  Kirkman,  his  wife,  by  deed  dated  the 
sixth  day  of  April,  1896,  registered  in  book  207,  page  498.  register's 
office  of  Davidson  county. 

VII. 

1.  Description  of  real  estate  leased  (continued). — Lot  No.  16.  in  Mc- 
Nairy's  addition  to  the  city  of  Nashville,  plan  of  which  is  recorded  in 
book  9,  page  323,  register's  office  of  Davidson  county;  said  lot  fronting 
50  feet  on  the  south  side  of   Broad  street,  and  extending  southwardly 
between  parallel  lines  169  feet  to  an  alley. 

2.  Lot  No.  86  in  said  McNairy's  addition  to  the  city  of  Nashville,  said 
lot  fronting  50  feet  on  the  north  side  of  McGavock  street,  and  extending 
northwardly  between  parallel  lines  166  feet  to  an  alley;  the  above  de- 
scribed pieces  or  parcels  of  land  being  the  same  conveyed  to  E.  L.  More 
by  Peter  Murray  by   deed  dated  June  21,   1890,  and  registered  in  book 
158,  page  580,  register's  office  of  Davidson  county,     Being  all  the  pieces 
or  parcels  of  land,  with  their  appurtenances,  which  were  conveyed  to 
the  Terminal  Company  by  E.  L.  More,  by  deed  dated  the  twenty -eighth 
day  of  March,  1896,  registered  in  book  207,  page  499,  register's  office  of 
Davidson  county. 


NASHVILLE,  CHATTANOOGA    A    ST.   LOUIS    RAILWAY.        577 

VIII. 

Same. — All  of  lot  No.  17  in  McNairy's  addition  to  the  city  of  Nash- 
ville, as  per  plan  in  chancery  court  plan,  book ,  page  IS,  said  lot 

fronting-  50  feet  on  the  north  side  of  Broad  street  and  extending  north- 
wardly between  parallel  lines  175  feet  to  an  alley,  it  being1  the  same 
conveyed  to  Pauline  D.  Lewis  by  Albert  B.  Tavel,  by  deed,  dated  Sep- 
tember 24,  1890,  registered  in  book  147,  page  595,  register's  office  of  Da- 
vidson county;  being  the  piece  or  parcel  of  land,  with  its  appurtenances, 
which  was  conveyed  to  the  terminal  company  by  Pauline  D.  Lewis  and 
E.  C.  Lewis,  her  husband,  by  deed,  dated  the  thirty-first  day  of  March, 
1896,  registered  in  book  207,  page  50O,  register's  office  of  Davidson 
county. 

IX. 

1.  Same.— Lot  No.  80  of  the  McNairy  plan  of  West  Nashville,  as  of 
record  in  plan  book  No.  9,  page  333,  register's  office  of  Davidson  county; 
said  lot  fronts  50  feet  on  the  north  side  of  McCJavock  street  and  runs 
back  between  parallel  lines  1(59  feet  to  an  alley. 

2.  Lot  No.  14  of  the  above-mentioned  plan,  fronting  50  feet  on  the 
south  side  of  Broad  street  and  running  back  between  parallel  lines  169 
feet  to  a  12-foot  alley,  being  the  same  lot  among  other  lots  conveyed  by 
John  Kirkman  to  James  P.  Kirkman,  trustee,  by  deed,  recorded  in  regis- 
ter's offiee  of  Davidson  county,  book  37,  page  690,  and  allotted  to  Mrs. 
A.  K.  Berry  by  decree  of  chancery  court  in  the  case  of  H.  C.  Prichitt  et 
"'.  v.  Mary  N.  Klrkiium  et  a/.,  recorded  in  minute  book  2,  page  468. 

3.  Lot  No.  252  in  the  above-mentioned  plan,  fronting  50  feet  on  the 
north  side  of  Laurel  street  and  running  back  175  feet,  with  equal  width, 
to  a  12-foot  alley;  being  all  of  the  pieces  or  parcels  of  land,  with  their 
appurtenances,  which  were  conveyed  to  the  terminal  company  by  Edgar 
Jones,  trustee,  by  deed,  dated  the  fifth  day  of  August  1890,  registered 
in  book  208,  page  416,  register's  office  of  Davidson  county. 

X. 

Same. — Lot  No.  13  in  the  Lunatic  Asylum  subdivision  in  the  city  of 
Nashville,  Tennessee,  fronting  50  feet  on  Kayne  avenue,  and  running 
back,  at  right  angles  to  the  point  between  parallel  lines,  150  feet  to  a 
10-foot  alley,  this  being  the  same  lot  bought  by  C.  C.  Christopher,  agent 
of  George  Spencer  and  F.  A.  Spencer,  as  shown  in  book  207,  page  187, 
register's  office  of  Davidson  county.  Being  the  piece  or  parcel  of  land, 
with  its  appurtenances,  which  was  conveyed  to  the  terminal  company 
by  C.  C.  Christopher,  agent,  by  deed  dated  the  third  day  of  March, 
1896,  registered  in  book  208,  page  426,  register's  office  of  Davidson  county. 

XI. 

Same.— A  part  of  lot  No.  120  of  Hynes'  addition  to  the  city  of  Nash- 
ville.  county  of  Davidson,  and  State  of  Tennessee,  bounded  and  described 
as  follows:  Beginning  at  a  point  in  the  south  line  of  Church  street,  on 
the  dividing  line  between  lots  numbers  120  and  121  of  said  Hynes*  addi- 

37 


578  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

tion;  thence  running  in  an  easterly  direction,  with  the  south  line  of 
Church  street,  45  feet  to  a  point;  thence  in  a  southerly  direction, 
parallel  to  the  east  line  of  McCreary  street,  140  feet  to  a  point  on  the 
north  line  of  lot  No.  122  of  said  addition;  Thence  in  a  westerly  direction 
with  said  north  line  of  lot  No.  122  45  feet  to  a  point  on  the  dividing  line 
between  lots  numbers  120  and  121  of  said  addition;  thence  in  a  northerly 
direction,  with  the  said  dividing  line  between  lots  numbers  120  and  121, 
140  feet  to  the  point  of  beginning;  it  being  the  said  conveyed  to  J.  W. 
Thomas,  agent,  by  J.  R.  Sneed,  Mary  Sneed.  Jos.  T.  Watts,  and  John 
Tansey.  by  deed  dated  March  31,  1896,  and  registerd  in  deed  book  207, 
page  508,  register's  office  of  Davidson  county;  and  to  the  terminal  com- 
pany by  J.  W.  Thomas,  agent,  by  deed  dated  April  24,  1896,  and  regis- 
tered in  deed  book  206,  page  506,  register's  office  of  Davidson  county. 

XII. 

Same;  future  acquired  property;  right  of  way,  tracks,  depots, 
etc. — All  of  lots  numbers  15  and  207  of  McNairy's  addition  to  the  city  of 
Nashville,  lot  No.  15  fronting  50  feet  on  the  north  side  of  Broad  street, 
and  extending  northwardly,  between  parallel  lines,  175  feet  to  an  alley; 
lot  No.  207  fronting  50  feet  on  the  south  side  of  Porter  street,  and  ex- 
tending in  a  southerly  direction,  between  parallel  lines,  175  feet  to  an 
alley;  they  being  the  same  conveyed  to  the  terminal  company  by  Thos. 
S.  Weaver,  clerk  and  master,  and  E.  C.  Lewis,  by  deed  dated  April  29, 
1896,  and  registered  in  deed  book  208,  page  461,  register's  office  of  David- 
son county. 

Also,  all  other  pieces  arid  parcels  of  land  which  may  be  here- 
after acquired  by  the  first  party  within  the  corporate  limits  of 
the  city  of  Nashville,  whether  the  same  be  acquired  by  pur- 
chase, condemnation,  lease,  or  otherwise. 

To  have  and  to  hold  the  said  premises,  with  the  appurte- 
nances thereunto  belonging,  including  all  rights  of  way,  ways, 
Depot  build-  and  other  easements;  all  passenger  and  freight  de- 
etc. '  pot  buildings,  office  buildings,  sheds,  warehouses, 

roundhouses,  shops,  and  other  buildings,  erections,  and  struc- 
tures; all  main  and  side  railroad  tracks,  switches,  crossovers, 
turnouts,  and  all  other  terminal  facilities  now  located  or  here- 
after to  be  erected  or  constructed  upon  said  premises  or  any 
part  or  portion  thereof,  unto  said  second  parties  and  their 
respective  successors  and  assigns  for  the  term  of  nine  hundred 
and  ninety-nine  years  from  the  first  day  of  July,  1896. 

ART.  2.  Lease  embraces  property  conveyed  by  Nashville, 
Chattanooga  &  St.  Louis  Railway  to  terminal  company.— 

Heretofore,  to  wit,  on  the  twenty-seventh  day  of  April,  1896, 


NASHVILLE,  CHATTANOOGA    <fe    ST.   LOUIS    RAILWAY.        579 

the  Nashville,  Chattanooga  &  St.  Louis  Railway,  by  a  certain 
lease,  granted  and  demised,  and  to  farm  let,  to  said  first  party, 
its  successors  and  assigns,  various  pieces  or  parcels  of  land, 
situated  in  said  city,  county,  and  state  for  a  term  of  nine  hun- 
dred and  ninety-nine  years  from  the  first  day  of  May,  1896, 
upon  certain  covenants,  provisos,  and  conditions,  as  in  and  by 
said  lease,  on  reference  thereto,  will  more  fully  appear,  and 
the  Louisville  &  Nashville  Railroad  Company  joined  in  said 
lease  for  the  purpose  of  granting  and  demising  to  said  first 
party  all  rights  and  privileges  in  the  demised  property  which 
it,  said  Louisville  &  Nashville  Railroad  Company,  was  entitled 
to  under  a  certain  agreement  between  the  Nashville  &  Chatta- 
nooga Railroad  Company  and  the  Louisville  &  Nashville  Rail- 
road Company,  dated  the  first  day  of  May,  1872.  Said  pieces 
or  parcels  of  land,  so  granted,  demised,  and  to  farm  let  by 
said  lease  of  the  twenty-seventh  day  of  April,  1896,  are 
bounded  and  described  as  follows,  viz. : 

PROPERTY    BETWEEN    CHURCH    AND    CEDAR    STREETS. 

Beginning  at  the  northeast  corner  of  Church  and  McCreary  streets, 
running  thence  eastward  with  the  north  line  of  Church  street,  435.2 
feet  to  the  southwest  corner  of  a  45-foot  lot  owned  byJas.  McKeon; 
thence  northwestward,  parallel  with  Walnut  street  and  with  said  Mc- 
Keon's  west  line,  which  is  the  east  line  of  a  lot  sold  by  T.  P.  Brady  to 
the  Nashville,  Chattanooga  &  St.  Louis  Railway,  by  deed  recorded  in 
book  83,  page  134,  register's  office  of  Davidson  county,  178.3  feet  to  Mc- 
Keon's  northwest  corner,  being  the  southwest  corner  of  a  lot  sold  by 
Jas.  McKeon  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  by 
deed  recorded  in  book  39,  page  603,  register's  office  of  Davidson  county; 
thence  eastward  at  right  angles,  45  feet  with  McKeon's  north  line  to 
said  McKeon's  northeast  corner;  thence  southward,  parallel  with 
Walnut  street  and  with  McKeon's  east  line,  175.8  feet  to  a  point  in  the 
north  line  of  Church  street  480.2  feet  east  of  McCreary  street;  thence 
eastward  with  the  north  line  of  Church  street  292.8  feet,  more  or  less,  to 
the  northwest  corner  of  Church  and  Walnut  streets;  thence  northward 
with  the  west  line  of  Walnut  street,  1,048.5  feet  to  the  southwest  corner 
of  Cedar  and  Walnut  streets;  thence  westward  with  the  south  line  of 
Cedar  street  454  feet  to  the  northeast  corner  of  the  Lusk  property,  which 
is  463  feet  eastward  from  the  southeast  corner  of  Cedar  and  McCreary 
streets;  thence  southward  with  the  line  between  the  Lusk  property  and 
the  lot  sold  to  the  Nashville  &  Chattanooga  Railroad  by  Vannoy,  Turbe- 
ville  &  Co.,  by  deed  recorded  in  book  32,  page  165,  register's  office  of 


580          LEASE    OF   TERMINAL   FACILITIES    AT   NASHVILLE. 

Davidson  county,  643.5  feet,  more  or  less,  to  the  north  line  of  the  prop- 
erty sold  by  John  Baird  to  the  Nashville  &  Chattanooga  Railroad  by 
deed  recorded  in  book  39,  page  599,  register's  office  of  Davidson  county; 
thence  westward  with  said  line  165.4  feet,  more  or  less,  to  the  southwest 
corner  of  the  Lusk  property,  which  is  the  southeast  corner  of  lot  No. 
114,  Hynes'  addition,  sold  by  the  Capers  Chapel  to  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  by  d«ed  recorded  in  book  104,  page  461, 
register's  office  of  Davidson  county;  thence  northward  with  the  line  be- 
tween said  lot  114  and  the  Lusk  property  145  feet,  more  or  less,  to  the 
south  line  of  Hynes  street;  thence  westward  with  the  south  line  of 
Hynes  street  215  feet,  more  or  less,  to  the  southeast  corner  of  Hynes  and 
McCreary  streets;  thence  southward  with  the  east  line  of  McCreary 
street  70  feet,  more  or  less,  to  the  line  between  lots  112  and  13,  Hynes' 
addition;  thence  eastward  with  said  line  145  feet  to  the  west  line  of  said 
lot  114;  thence  southward,  parallel  with  and  145  feet  from  the  east  line 
of  McCreary  street,  with  the  line  between  the  said  John  Baird  property 
and  Hynes'  addition.  245  feet  more  or  less,  to  the  northeast  corner  of 
lot  117,  Hynes'  addition;  thence  westward  with  the  line  between  lots 
117  and  116,  Hynes'  addition,  145  feet  to  the  east  line  of  McCreary  street, 
thence  southward  with  the  east  line  of  McCreary  street  225  feet  to  the 
beginning  point. 

PROPERTY   BETWEEN   CHURCH   AND    BROAD    STREETS. 

Beginning  at  a  point  in  the  north  line  of  Broad  street  80.3  feet  west 
of  its  intersection  with  the  west  line  of  Walnut  street,  running  thence 
northward  with  the  west  side  of  a  stone  wall  242.5  feet;  thence  east- 
ward 67  feet  to  a  point  in  the  west  line  of  Walnut  street,  distant  234.5 
feet  from  the  north  line  of  Broad  street;  thence  northward  with  the 
west  line  of  Walnut  street  793.1  feet  to  the  southwest  corner  of  Church 
and  Walnut  streets;  thence  westward  with  the  south  line  of  Church 
street  619.3  feet  to  the  east  line  of  Hyne's  addition:  thence  southward 
347.5  feet,  more  or  less,  to  the  north  line  of  Grundy  street;  thence  east- 
ward with  the  north  line  of  Grundy  street  7  feet;  thence  southward 
along  the  east  line  of  lots  206,  207,  and  13  of  McNairy's  addition  660.2 
feet  to  the  north  line  of  Broad  street;  thence  eastward  with  the  north 
line  of  Broad  street  498  feet,  more  or  less,  to  the  beginning. 

PROPERTY   BETWEEN    BROAD    AND    SPRUCE    STREETS. 

Lots  69,  71,  and  73  of  McNairy's  plan  of  West  Nashville,  fronting  150 
feet  on  the  south  side  of  McGavock  street  and  running  back  between 
parallel  lines  at  right  angles  thereto  166  feet  to  a  12-foot  alley,  being 
the  same  lots  conveyed  to  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way, by  deeds,  as  follows:  Lot  69.  by  chancery  court  decree,  recorded  in 
book  169,  page  181,  register's  office  of  Davidson  county;  lot  71,  by  C.  D. 
Berry  and  wife,  by  deed,  recorded  in  book  69,  page  273,  register's  office 
of  Davidson  county,  and  lot  73,  by  W.  H.  Fletcher  and  wife,  by  deed, 
recorded  in  book  79,  page  148,  register's  office  of  Davidson  county.  Also 
lot  No.  138  McNairy's  plan  of  West  Nashville,  described  as  follows:  Be- 


NASHVILLE,  CHATTANOOGA    <fe    ST.   LOUIS    RAILWAY.        581 

ginning  at  the  northwest  corner  of  Demonbrenn  street  and  the  old 
middle  Franklin  turnpike;  thence  westward  with  the  north  line  of  De- 
monbreun  street  34.8  feet  to  the  southeast  corner  of  lot  No.  139;  thence 
northward  with  the  line  between  lots  138  and  1 :'.'.«.  106.2  feet  to  a  13-foot 
alley;  thence  eastward  with  the  south  line  of  said  alley  145.4  feet  to  the 
west  line  of  said  turnpike;  thence  southwestward  with  said  west  line  of 
said  turnpike  2(H)  feet,  more  or  less,  to  the  beginning,  being  the  same 
lot  conveyed  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway  by 
Robert  Evving,  clerk  and  master,  by  deed,  recorded  in  book  68,  page  465, 
register's  office  of  Davidson  county. 

Also,  beginning  at  a  point  in  the  southern  line  of  Broad  street,  20 
feet  west  of  the  center  line  of  the  main  track  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  and  in  the  line  of  the  right  of  way  of  said 
road;  thence  southward,  parallel  with  said  railroad  and  20  feet  there- 
from, 629.5  feet,  more  or  less,  to  a  point  in  the  south  line  of  the  old 
middle  Franklin  turnpike  20  feet  west  of  the  center  line  of  the  main 
track  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  which  point 
is  the  northwest  corner  of  lot  No.  1  in  the  McClean  plan  of  lots,  which 
plan  is  registered  in  book  21,  page  44,  register's  office  of  Davidson 
county;  running  thence  southward,  along  said  line  of  said  turnpike,  250 
feet  to  the  southwest  corner  of  lot  No.  4  of  said  McClean  plan,  where 
there  is  an  offset  in  said  line  of  said  turnpike;  thence  eastward,  with 
the  south  line  of  said  lot  No.  4  and  with  the  said  offset  in  said  turnpike 
line,  143^  feet  to  the  line  of  said  turnpike  where  it  was  50  wide;  thence 
southward,  with  the  said  line  of  said  turnpike,  881  feet,  to  the  southwest 
corner  of  a  lot  sold  by  S.  G.  Moore  and  wife  and  others  to  the  Nashville, 
Chattanooga  &,  St.  Louis  Railway  by  deed  recorded  in  book  47,  page 
265,  register's  office  of  Davidson  county;  thence  eastward,  with  the 
south  line  of  said  last  named  lot,  532  feet,  more  or  less,  to  the  center 
line  of  Overton  street,  if  extended;  thence  northward,  with  the  center 
line  of  Overton  street,  if  extended,  170  feet,  more  or  less,  to  the  south- 
west corner  of  a  lot  sold  by  William  Woodfolk  to  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  by  deed  recorded  in  book  69,  page  274,  regis- 
ter's office  of  Davidson  county,  which  corner  is  the  same  as  point  C, 
described  in  said  deed;  thence  eastward,  with  the  south  line  of  the  last 
named  lot,  passing  through  the  northwest  corner  of  the  Lanier  mill 
building,  198  feet,  more  or  less,  to  a  point  in  the  face  thereof  about  14 
feet  from  the  said  corner,  and  48  feet,  more  or  less,  distant  from  the 
center  line  of  the  main  track  of  the  Nashville,  Chattanooga  &.  St.  Louis 
Railway;  thence  southwardly,  along  the  face  of  said  mill,  163  feet  to  an 
angle  therein,  which  is  33.9  feet  from  the  center  line  of  said  main  track; 
thence  southwardly,  along  the  face  of  said  mill,  parallel  with  the  said 
railroad,  and  33.9  feet  from  its  center  line,  171.5  feet,  more  or  less, 
to  a  point  in  the  center  of  what  was  formerly  Hay  street;  thence  south, 
with  the  said  center  line  of  Hay  street,  104  feet,  more  or  less,  to  the 
north  line  of  a  10- foot  alley,  which  runs  parallel  to  U leaves  street; 
thence  eastwardly,  along  the  north  line  of  said  alley,  168  feet,  to  the 
west  line  of  a  12-foot  alley;  thence  northwardly  along  said  line 


582  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

feet,  more  or  less,  to  the  right  of  way  line  of  the  Nashville,  Chattanooga 
&  St.  Louis  Railway,  20  feet  from  the  center  line  of  the  main  track  of 
the  same;  thence  southeastward,  along  said  right  of  way  line,  272  feet, 
more  or  less,  to  the  northwest  corner  of  Gleaves  and  Spruce  streets; 
thence  northward,  with  the  west  line  of  Spruce  street,  87  feet,  more  or 
less,  to  the  line  of  the  right  of  way  of  said  railroad,  30  feet  from  its 
center  line;  thence  northwestward,  along  said  right  of  way  line,  240 
feet,  more  or  less,  to  the  west  line  of  a  12-foot  alley,  at  a  point  20  feet 
northeastward  from  the  center  line  of  said  railroad;  thence  north,  with 
the  west  line  of  said  alley,  93  feet,  more  or  less,  to  the  northeast  corner 
of  a  lot  conveyed  to  the  Nashville,  Chattanooga  &,  St.  Louis  Railway  by 
Robert  Ewing,  C.  and  M.,  by  deed  recorded  in  book  68,  page  363,  regis- 
ter's office  of  Davidson  county;  thence  westward,  with  the  north  line  of 
said  lot,  passing  through  the  Nashville  Mills  building,  136  feet,  more  or 
less,  to  a  point  in  the  face  thereof  25.5  feet  from  the  center  line  of  the 
main  track  of  said  railroad;  thence  northwestward,  parallel  with  said 
railroad  and  along  the  face  of  said  mill,  112  feet,  more  or  less,  to  the 
northwest  corner  of  said  mill  building;  thence  northeastward,  at  right 
angles  to  the  face  of  said  mill,  13  inches,  more  or  less,  to  the  northern 
face  of  a  brick  boundary  wall  erected  by  the  Nashville,  Chattanooga  & 
St.  Louis  Railway;  thence  northtvestward,  along  the  face  of  said  wall, 
parallel  with  said  railroad,  106  feet,  to  an  offset;  thence  southwestward, 
at  right  angles  along  said  offset,  12.5  feet,  to  the  face  of  said  wall,  at  a 
point  14  feet  from  the  center  line  of  the  main  track  of  said  railroad; 
thence  northwestward,  along  the  face  of  said  wall,  80  feet,  to  a  point 
13.4  feet  from  the  center  line  of  said  main  track,  at  the  point  of  curve  of 
the  same;  thence  northward,  along  said  wall  in  a  curve  to  the  right,  200 
feet,  to  a  point  14.4  feet  from  said  center  line;  thence  northward,  along 
said  wall,  200  feet,  to  a  point  14.1  feet  from  said  center  line;  thence 
northward,  along  said  wall,  160  feet,  to  a  point  13.7  feet  from  the  center 
of  said  railroad,  at  the  point  of  tangent  thereof;  thence  northward,  with 
the  face  of  said  wall  in  a  straight  line  along  the  line  of  an  alley  and 
South  Walnut  street,  1,325  feet,  more  or  less,  to  its  intersection  with  the 
south  line  of  Broad  street,  at  a  point  20.5  feet  from  the  center  line  of 
said  main  track;  thence  westward,  with  the  southern  line  of  Broad 
street,  40.5  feet,  to  a  point  in  the  right  of  way  line  20  feet  west  of  the 
center  line  of  said  railroad,  to  the  beginning. 

Also,   all  rights  of  way,    railroad  tracks,    and  property  of 
every  other  description  which  the  first  party  has  in  or  across 

Rights  of  way.  Cedar  street,   east  of    the   west  line  of  Belleville 

tracks,  etc., 

pass.  street,  and  all  rights  of  way,  railroad  tracks,  and 

property  of  every  other  description  which  the  first  party  has 
in  or  across  Church  street  and  in  or  across  Broad  street. 

Said    first  party  hath  granted,    bargained,    sold,    assigned, 
transferred,    and  set  over,  and  by  these  presents  doth  grant, 


NASHVILLE,  CHATTANOOGA   A    ST.   LOUIS    RAILWAY.          583 

bargain,  sell,  assign,  transfer,  and  set  over  unto  said  second 
parties,  and  their  respective  successors  and  assigns,  each  and 
all  of  said  pieces  or  parcels  of  land  described  in  this  article, 
with  the  appurtenances,  including  all  the  rights  of  way,  ways, 

and   other   easements,    all    passenger    and    freight  Easements. 

u  -U-  u  'ij-  u  ,depot  bull(i- 

depot    buildings,     office    buildings,    sheds,    ware-  iocs.  etc..  pass. 

houses  roundhouses,  shops,  and  other  buildings,  erections,  and 
structures,  all  main  and  side  railroad  tracks,  switches,  cross- 
overs, and  turnouts,  and  all  other  terminal  facilities  now 
located,  or  hereafter  to  be  erected  or  constructed  upon  said 
premises  described  in  this  article,  or  any  part  or  portion 
thereof;  also  all  the  estate,  right,  title,  and  interest,  and  the 
said  term  of  years,  yet  to  come  and  unexpired,  and  all  the 
property,  claim,  and  demand  whatsoever  of  said  first  part}', 
of,  in,  and  to  the  same,  and  every  part  and  parcel  thereof, 
together  with  said  lease  itself,  and  all  rights  of  renewal  or 
extension  of  the  same,  now  owned  by  said  first  party. 

To  have  and  to  hold  said  pieces  or  parcels  of  land  described 
in  this  article,  and  hereby  granted  and  assigned,  and  every 
part  thereof,  unto  said  second  parties,  and  their  respective 
successors  and  assigns,  for  and  during  the  residue  of  said  term 
of  years,  in  and  by  said  lease  granted,  in  as  full,  large,  and 
ample  a  manner,  to  all  intents  and  purposes,  as  Expjration 
said  first  party,  or  its  successors  or  assigns,  now  of  iease- 
holds,  or  may  at  any  time  hold  and  enjoy  the  same  by  virtue 
of  said  lease,  subject,  nevertheless,  to  the  several  rents,  cove- 
nants, provisos,  and  conditions  in  the  said  lease  reserved  and 
contained. 

ARTICLE  3.  Lease  embraces  property  conveyed  by  Louisville 
&  Nashville  Railroad  Company  to  Terminal  Company.— Here- 
tofore, to- wit,  on  the  twenty-seventh  day  of  April,  1896,  the 
Louisville  &  Nashville  Railroad  Company,  by  a  certain  lease, 
granted  and  demised  and  to  farm  let  to  said  first  party,  its 
successors  and  assigns,  various  pieces  or  parcels  of  land, 
situated  in  said  city,  county,  and  state,  for  a  term  of  1)99  years 
from  the  first  day  of  May,  1896,  upon  certain  covenants,  pro- 
visos, and  conditions,  as  in  and  by  said  lease,  on  reference 


584  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

thereto,  will  more  fully  appear;  and  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  joined  in  said  lease  for  the  purpose 
of  granting  and  demising  to  said  first  party  all  rights  in  the 
demised  property  which  it,  said  Nashville,  Chattanooga  &  St. 
Louis  Railway,  was  entitled  to  under  a  certain  agreement  be- 
tween the  Nashville,  Chattanooga  &  St.  Louis  Railway  and  the 
Louisville  &  Nashville  Railroad  Company,  dated  the  first  day 
of  May,  1872.  Said  pieces  or  parcels  of  land,  so  granted, 
demised,  and  to  farm  let  by  said  lease  of  the  twenty-seventh 
day  of  April,  1896,  are  bounded  and  described  as  follows,  viz: 

1.  A  lot  of  land  beginning  at  a  stake  on  the  south  side  of  Gay  street, 
the  northeast  corner  of  a  tract  of  land  owned  in  1858  by  Wm.  Copers, 
and  running  thence  southerly,  at  right  angles,  110  feet,  more  or  less,  to 
an  alley;  thence  in  an  easterly  direction  with  said  alley  38  feet;  thence 
in  a  northerly  direction  110  feet  to  a  point  on  the  south  line  of   Gay 
street;  thence  in  a  westerly  direction  38  feet  to  the  place  of  beginning. 

2.  A  triangular  lot  beginning  at  a  point  on  the  south  side  of  Gay 
street,  at  the  intersection  of  the  east  line  of  the  lot  described  in  descrip- 
tion  No.   1;   thence  in  a  southerly  direction  with  the  west  line  of  lot 
described  in  description  No.  1,  25  feet;  thence  in  a  northeasterly  direc- 
tion 25  feet,  more  or  less,  to  a  point  on  the  south  side  of  Gay  street,  4 
feet  east  of  the  east  line  of  lot  described  in  description  No.  1 ;  thence  in 
a  westerly  direction,  with  the  south  line  of  Gay  street,   4  feet  to  the 
pointjof  beginning. 

3.  A  lot  or  parcel  of  land,  being  all  of  lot  No.  2  and  1834  feet  off  the 
east  side  of  lot  No.  4,  of  the  B.  M.  Barnes  addition  to  the  city  of  Nash- 
ville, fronting  52  feet  on  the  north  side  of  Pearl  street  and  extending 
north  between  parallel  lines  110  feet,  more  or  less,  to  an  alley. 

4.  A  lot  or  parcel  of  land  beginning  at  a  point  on  the  south  line  of 
Pearl  street,  being  the  northwest  corner  of  the  land  originally  owned 
by  H.  Murray;  thence  southerly,  at  right  angles  to  Pearl  street,  60  feet; 
thence  westerly,  parallel  to  Pearl  street,  15  feet;  thence  southerly  at 
right  angles  165  feet  7  inches,  more  of  less,  to  the  north  line  of  Shank- 
land  street;  thence  in  a  westerly  direction  with  the  north  line  of  Shank- 
land  street  80  feet;  thence  in  a  northerly  direction  at  right  angles  225 
feet  7  inches,  more  or  less,  to  the  south  line  of  Pearl  street;  thence  in  an 
easterly  direction,  with  the  south  line  of  Pearl  street,  95  feet  to  the 
point  of  beginning. 

5.  A  lot  or  parcel  of  land  beginning  at  a  point  on  the  north  line  of 
Cedar  street  138  feet  1  inch  easterly  from  the  east  line  of  Bellville  street; 
thence  running  northerly,  parallel  with  Bellville  street,  248  feet  to  the 
south  line  of  Shankland  street;  thence  easterly  along  the  south  line  of 
Shankland  street  35  feet;  thence  southerly  at  right  angles  68  feet;  thence 
westerly,  parallel  with  Cedar  street,  11   feet;  thence  in  southerly  direc- 


\\-IIVILLE,  CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.          585 

tion  180  feet  to  Cedar  street;  thence  in  a  westerly  direction,  with  the 
north  line  of  Cedar  street,  24  feet  to  the  place  of  beginning. 

6.  Railroad  passes. — Also  the  railroad  and  right  of  way  on  which 
the  same  is  constructed  from  the  south  line  of  Gay  street,  over  the  lots 
above  described  and  across  Pearl  and  Shankland  and  Cedar  streets,  to 
the  south  line  of  Cedar  street. 

And  the  terminal  company  may  deem  it  necessary  to  here- 
after acquire  by  lease,  or  assignment  of  lease,  other  pieces  or 
parcels  of  land,  with  their  appurtenances,  situated  in  said  city 
of  Nashville,  in  the  state  of  Tennessee. 

Said  first  party  hath  granted,  bargained,  sold,  assigned, 
transferred,  and  set  over,  and  by  these  presents  doth  grant, 
bargain,  sell,  assign,  transfer,  and  set  over  unto  said  second 
parties  and  their  respective  successors  and  assigns,  each  and 
all  of  said  pieces  or  parcels  of  land  described  in  this  article, 
with  the  appurtenances  thereunto  belonging,  including  all 
rights  of  way,  ways,  and  other  easements,  and  all  railroad 
tracks  and  all  other  terminal  facilities  now  located,  Rights  of  way. 

or  hereafter  to  be  erected  or  constructed  upon  said  tracks,  depot 

.,,.,,.          ,.  .  buildings,  etc.. 

premises  described  in  this  article,   or  any  part  or  pass. 

portion  thereof;  also  all  the  estate,  right,  title,  and  interest,  and 
the  said  term  of  years  yet  to  come  and  unexpired,  and  all  the 
property,  claim,  and  demand  whatsoever  of  said  first  party, 
of,  in,  and  to  the  same  and  every  part  and  parcel  thereof, 
together  with  said  lease  itself,  and  all  rights  of  renewal  or  ex- 
tension of  the  same  now  owned  by  said  first  party. 

To  have  and  to  hold  said  pieces  or  parcels  of  land  described 
in  this  article,   and  hereby  granted  and  assigned,   and  every 
part  thereof,  unto  said  second  parties  and  their  respective  suc- 
cessors and  assigns,  for  and  during  the  residue  of  said  term  of 
years,   in  and  by   said  lease  granted,    in  as  full,    large,   and 
ample  manner,  to  all  intents  and  purposes,  as  said  Exp|ratioll  of 
first  party,  or  its  successors  or  assigns,  now  hold,   lease< 
or  may  at  any  time  hold  and  enjoy  the  same,  by  virtue  of  said 
lease,  subject,  nevertheless,  to  the  several  rents,  covenants,  pro- 
visos, and  conditions  in  the  said  lease  reserved  and  contained. 

ART.  4.    Guarantee  of  peaceable  possession.— Said  first 

party  doth  hereby,  for  itself,  its  successors,  and  assigns,  cove- 


586  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

nant  with  said  second  parties,  and  their  respective  successors 
and  assigns,  that  they,  paying  the  rent  hereinafter  reserved, 
and  performing  the  covenants  hereinafter  on  their  part  con- 
tained, shall  and  may  peaceably  possess  and  enjoy  the  premises 
described  in  the  first  article,  for  the  term  granted  in  said  first 
article,  without  any  interruption  or  disturbances  from  said  first 
party,  or  its  successors  or  assigns,  or  any  other  person  or 
persons  whomsoever  lawfully  claiming  by,  from,  or  under  said 
first  party,  or  its  successors  or  assigns. 

ART.  5.  Original  leases  of  the  two  railroads  to  terminal 
company  unimpaired  by  this  lease,  warranty  as  to  right  to 

lease,  peaceable  possession. — Said  first  party  doth  hereby,  for 
itself,  its  successors,  and  assigns,  covenant  with  said  second 
parties,  and  their  respective  successors  and  assigns,  that  not- 
withstanding any  act,  deed,  or  thing,  whatsoever  made,  done, 
or  suffered  to  the  contrary,  by  said  first  party,  or  its  successors 
or  assigns,  the  said  lease  executed  by  the  said  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  mentioned  in  the  second  article, 
and  the  said  lease  executed  by  the  said  Louisville  &  Nashville 
Railroad  Company,  mentioned  in  the  third  article,  are  still  in 
force,  for  the  respective  residue  of  the  said  terms  therein 
specified,  and  thereby  granted;  and  neither  void  nor  voidable. 
And,  also,  that,  notwithstanding  any  such  act,  deed  or  thing,  as 
aforesaid,  said  first  party  now  hath,  in  itself,  good  right,  by  these 
presents,  to  assign  the  said  premises  described  in  the  second 
and  third  articles,  respectively,  together  with  their  appurte- 
nances, unto  said  second  parties,  and  their  respective  successors 
and  assigns,  for  the  respective  residue  of  the  said  terms,  in 
manner  aforesaid.  And,  also,  that  subject  to  the  payment  of 
rent,  and  the  performance  of  the  covenants,  provisos,  and  con- 
ditions in  the  said  two  last  mentioned  leases  contained,  and  by, 
and  on  the  part  of  said  first  party,  its  successors  and 
assigns,  to  be  observed  and  performed,  it  shall  be  lawful  for 
said  second  parties,  and  their  respective  successors  and  assigns, 
henceforth  during  the  respective  residues  of  the  said  terms,  to 
enter  into,  and  upon,  hold,  and  enjoy  the  said  premises  de- 
scribed in  the  second  and  third  articles  respectively,  together 


NASHVILLE,  CHATTANOOGA   A    ST.   LOUIS    RAILWAY.          587 

with  their  appurtenances,  and  to  receive  and  take  the  rents  and 
profits  thereof,  without  any  hinderance  or  interruption  what- 
soever of  said  first  party,  its  successors  or  assigns,  or  any 
other  person  or  persons  whomsoever,  lawfully  claiming  by, 
from  or  under  said  first  party,  its  successors  or  assigns. 

ART.  6.  Agreement  to  renew  lease  for  999  years ;  how.— 

Said  first  party  doth  hereby,  for  itself,  its  successors  and 
assigns,  covenant  with  said  second  parties,  and  their  respective 
successors  and  assigns,  that  said  first  party,  its  successors  and 
assigns,  will,  on  or  before  the  expiration  of  the  term  in  the 
first  article  granted,  at  the  request  and  expense  of  the  said 
second  parties,  or  their  respective  successors  or  assigns,  grant 
and  execute  to  them  a  new  lease  of  the  premises  demised  and 
described  in  the  first  article,  together  with  their  appurtenances, 
for  the  further  term  of  nine  hundred  and  ninety-nine  years,  to 
commence  from  the  expiration  of  said  term  in  the  first  article 
granted,  at  the  same  yearly  rent,  payable  in  like  manner,  and 
subject  to  the  like  covenants,  provisos,  and  conditions,  except  a 
covenant  for  further  renewal,  as  are  contained  in  these  presents 
in  relation  to  said  premises. 

ART.  7.  Same. — Said  first  party  doth  hereby,  for  itself,  its 
successors  and  assigns,  covenant  with  said  second  parties,  and 
their  respective  successors  and  assigns,  that  said  first  party,  its 
successors  and  assigns,  will,  on  or  before  the  expiration  of  the 
terms  granted  in  the  leases  mentioned  in  the  second  and  third 
articles,  at  the  request  and  expense  of  said  second  parties,  or 
their  respective  successors  or  assigns,  grant  and  execute  to 
them  assignment  of  any  new  leases  which  said  first  party,  its 
successors  or  assigns,  may  hereafter  obtain  of  the  premises 
assigned  and  described  in  said  second  and  third  articles,  to- 
gether with  their  appurtenances,  for  the  further  term  of  nine 
hundred  and  ninety-nine  years,  to  commence  from  the  expira- 
tion of  the  terms  granted  in  said  leases  mentioned  in  the  second 
and  third  articles. 

ART.  8.  Agreement  to  execute  additional  papers,  etc.,  to 

perfect  title,  When. — Said  first  party  doth  hereby,  for  itself, 
its  successors  and  assigns,  covenant  with  said  second  parties, 


588  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

and  their  respective  successors  and  assigns,  that  said  first 
party,  its  successors  and  assigns,  will  henceforth,  during  the 
residue  of  the  term  granted  in  the  first  article,  and  during  the 
residue  of  the  term  that  may  be  granted  in  any  new  lease 
which  may  be  executed,  as  provided  in  the  sixth  article,  upon 
every  reasonable  request,  and  at  the  cost  of  said  second  parties, 
or  their  respective  successors  or  assigns,  make,  do,  and  exe- 
cute, or  cause  to  be  made,  done,  and  executed,  all  such  reason- 
able acts,  deeds,  and' assurances  in  the  law,  whatsoever,  for  the 
further,  better,  or  more  satisfactory  granting,  demising  or 
assuring  the  said  premises,  or  any  part  thereof,  described  in 
the  first  article,  together  with  their  appurtenances,  unto  said 
second  parties,  and  their  respective  successors  and  assigns,  for 
the  then  residue  of  the  term  granted  in  said  first  article,  or  for 
the  then  residue  of  the  term  that  may  be  granted  in  any  new 
lease  which  may  be  executed,  as  provided  in  the  sixth  article, 
as  by  said  second  parties,  or  their  respective  successors  or 
assigns,  or  their  counsel  in  the  law,  shall  be  reasonably  required, 
and  be  tendered  to  be  made,  done,  and  executed. 

And  upon  like  reasonable  request,  and  at  the  like  cost,  of 
said  second  parties,  or  their  respective  successors  or  assigns, 
said  first  party,  its  successors  and  assigns,  will,  henceforth, 
during  the  respective  residue  of  the  said  terms  qualified  in  the 
said  leases  mentioned  in  the  second  and  third  articles,  make, 
do,  and  execute,  or  cause  to  be  made,  done,  and  executed,  all 
such  lawful  and  reasonable  acts,  deeds,  and  assurances  in  the 
law,  whatsoever,  for  the  further,  better,  or  more  satisfactorily 
assigning  or  assuring  the  said  premises,  or  any  part  theof ,  de- 
scribed in  the  second  and  third  articles,  together  with  their 
appurtenances,  unto  said  second  parties,  and  their  respective 
successors  and  assigns,  for  the  then  respective  residue  of  the 
said  terms  specified  in  the  said  lease  mentioned  in  the  second 
and  third  Articles,  as  by  said  second  parties,  or  their  respect- 
ive successors  or  assigns,  or  their  counsel  in  the  law,  shall,  be 
reasonably  required  and  be  tendered  to  be  made,  done,  and 
executed. 


NASHVILLE,  CHATTANOOGA    &    ST.  LOUIS    RAILWAY.          589 

ART.  9.  Agreement  to  construct  depot,  tracts,  terminal 
facilities,  etc.,  on  leased  premises.— Said  first  party  doth 

h<T«>by,  for  itself,  its  successors  and  assigns,  covenant  with 
said  second  parties,  and  their  respective  successors  and  assigns, 
that  said  first  party,  its  successors  and  assigns,  will,  with  all 
reasonable  dispatch,  and  during  the  term  granted  in  the  first 
article,  erect  and  construct  u|>on  the  premises  described  in  the 
first,  second,  and  third  articles,  all  such  passenger  and  freight 
depot  buildings,  office  buildings,  sheds,  warehouses,  round- 
houses, shops,  and  other  buildings,  erections,  and  structures, 
and  all  such  main  and  side  railroad  tracts,  switches,  crossovers, 
and  turnouts,  and  all  such  other  terminal  facilities  as  may  be 
necessary  to  provide  suitable  and  adequate  railroad  terminal 
facilities  for  such  of  the  railroads  centering  at  Nashville,  Ten- 
nessee, as  may  contract  therefor,  with  said  first  party,  its  suc- 
cessors or  assigns. 

ART.  10.  Terminal  company  to  keep  insured  depot,  build- 
ings, etc. — Said  first  party  doth  hereby,  for  itself,  its  sue 
cessors  and  assigns,  covenant  with  said  second  parties  and  their 
respective  successors  and  assigns,  that  as  soon  as  the  same 
shall  be  erected  or  constructed,  said  first  party,  its  successors 
and  assigns,  shall,  and  will,  forthwith  insure  against  loss  by 
fire  the  improvements  described  in  the  ninth  article  as  passen- 
ger and  freight  depot  buildings;  office  buildings,  sheds,  ware- 
houses, roundhouses,  shops  and  other  buildings,  erections,  and 
structures,  main  and  side  railroad  tracks,  switches,  crossovers, 
and  turnouts,  and  other  terminal  facilities  which  may  be  here- 
after erected  or  constructed  upon  the  premises  or  property 
described  in  the  first,  second,  and  third  articles,  and  all  addi- 
tions thereto  and  extensions  thereof;  that  the  same  shall  be  so 
insured,  to  the  full  value  thereof,  in  some  respectable  in- 
surance company  or  companies;  that  the  same  shall  be  kept  so 
insured  during  the  term  granted  in  the  first  article,  and  during 
the  term  that  may  be  granted  in  any  new  lease  which  may  be 
executed,  as  provided  in  the  sixth  article,  and  during  the  terms 
that  may  be  assigned  in  any  assignments  of  the  leases  men- 
tioned in  the  second,  third,  and  seventh  articles;  and  as  often 


590  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

as  the  property  so  insured  shall  be  burned  down  or  damaged 
by  fire,  all  and  every  the  sura  or  sums  of  money  which  shall 
be  recovered  or  received  by  said  first  party,  its  successors  or 
assigns,  for,  or  in  respect  of,  such  insurance,  shall  be  paid 
over  by  said  first  party,  its  successors  or  assigns,  to  said  second 
parties  or  their  respective  successors  or  assigns,  to  be  laid  out 
and  expended  by  them  in  rebuilding  or  repairing  the  property 
so  insured  or  such  parts  thereof  as  shall  be  destroyed  or 
injured  by  tire. 

ART.  11.  Terminal  company  to  pay  all  taxes,  assessments, 

etc.,  On  leased  property. — Said  first  party  doth  hereby,  for 
itself,  its  successors  and  assigns,  covenant  with  said  second 
parties,  and  their  respective  successors  and  assigns,  that  said 
first  party,  its  successors  and  assigns,  shall,  and  will,  during 
the  term  granted  in  the  first  article,  and  during  the  term  that 
may  be  granted  in  any  new  lease  which  may  be  executed  as 
provided  in  the  sixth  article,  and  during  the  terms  that  may 
be  assigned  in  any  assignments  of  the  leases  mentioned  in  the 
second,  third,  and  seventh  articles,  pay  and  discharge  all 
taxes,  rates,  charges,  and  assessments  that  may  be  levied  or 
imposed,  during  the  term  or  terms  aforesaid,  upon  said  premises 
or  property  described  in  the  first,  second,  and  third  articles, 
and  the  improvements  described  in  the  ninth  article  as  passen- 
gers and  freight  depot  buildings,  office  buildings,  sheds,  ware- 
houses, roundhouses,  shops,  and  other  buildings,  erections, 
and  structures,  main  and  side  railroad  tracks,  switches,  cross- 
overs, and  turnouts,  and  other  terminal  facilities  which  may 
be  hereafter  erected  or  constructed  upon  the  premises  or  prop- 
erty described  in  the  first,  second,  and  third  articles,  and  all 
additions  thereto  and  extensions  thereof. 

ART.  12.  Rent,  amount  and  hOW  paid.— Said  second  parties 
do  hereby,  for  themselves  and  their  respective  successors  and 
assigns,  covenant  with  the  said  first  party,  its  successors  and 
assigns,  that,  as  rent  for  the  premises  or  property  described  in 
the  first  article,  and  for  rent  of  the  improvements  described  in 
the  ninth  article  as  passenger  and  freight  depot  buildings, 
office  buildings,  sheds,  warehouses,  roundhouses,  shops,  and 


NASHVILLE,   CHATTANOOGA    A    ST.    LOUIS    RAILWAY.          591 

other  buildings,  erections,  and  structures,  and  main  and  side 
railroad  tracks,  switches,  crossovers,  and  turnouts,  and  other 
terminal  facilities,  and  all  additions  thereto  and  extensions 
thereof,  said  second  parties,  and  their  respective  successors  and 
assigns,  will  pay  to  said  first  party,  its  successors  and  assigns, 
annually,  in  each  and  every  year  during  the  term  granted  in 
said  first  article,  and  during  the  term  that  may  be  granted  in 
any  new  lease  which  may  be  executed,  aa  provided  in  the  sixth 
article,  and  during  the  term  that  may  be  assigned  in  any  as- 
signments of  the  leases  mentioned  in  the  second,  third,  and 
seventh  articles,  a  sum  equal  to  interest  at  four  per  cent,  per 
annum  upon  the  actual  cost  of  all  expenditures  heretofore 
made,  or  to  be  hereafter  made,  by  said  first  party,  its  succes- 
sors and  assigns,  from  time  to  time,  in  the  purchase  or  other 
acquisition  of  said  premises  or  property,  and  in  the  erec- 
tion and  construction  of  said  improvements  and  of  all  addi- 
tions thereto  and  extensions  thereof,  and  to  all  taxes,  rates, 
charges,  and  assessments  that  may  be  levied  or  imposed  during 
the  term  or  terms  aforesaid  upon  said  premises  or  property 
and  said  improvements,  and  all  additions  thereto  and  extensions 
thereof,  and  to  the  cost  of  such  insurance  as  may  be  neces- 
sary to  keep  said  premises  or  property  and  said  improvements, 
and  all  additions  thereto  and  extensions  thereof,  insured  to 
their  full  value  during  the  term  or  terms  aforesaid. 

On  the  first  day  of  October,  in  each  and  every  year  during 
the  term  or  terms  aforesaid,  the  sum  which  will  be  due  as  rent, 
aforesaid,  for  the  next  succeeding  year,  upon  the  basis  in  this 
article  established,  shall  be  ascertained  and  fixed  by  the  parties 
hereto,  and  the  sum  so  ascertained  and  fixed  shall  be  paid  by 
said  second  parties,  and  their  respective  successors  and  assigns, 
to  said  first  party,  and  its  successors  and  assigns,  in  equal 
quarterly  payments,  on  the  first  days  of  October,  January, 
April,  and  July  in  the  year  for  which  said  sum  may  be  so 
established  and  fixed. 

ART.  is.  Railroad  companies  agree  to  pay  above  rent,  keep 
covenants  and  hold  terminal  company  harmless.— Said  second 

parties  do   hereby,  for   themselves,  and  their  respective   sue- 


592  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

cessors  and  assigns,  covenant  with  said  first  part,  its  successors 
and  assigns,  that  said  second  parties,  and  their  respective  suc- 
cessors and  assigns,  shall,  and  will,  from  time  to  time,  and  at 
all  times  during  the  respective  residues  of  the  said  terms 
specified  in  the  said  leases,  mentioned  in  the  second  and  third 
articles,  well  and  truly  pay  or  cause  to  be  paid,  unto  the  lessors 
mentioned  in  said  leases  respectively,  or  unto  such  person,  or 
persons,  as  for  the  tirne  being  shall  be  entitled  to  receive  the 
same,  the  yearly  rents  by  said  leases  respectively  reserved  and 
made  payable,  which  from  thenceforth  shall  grow  due;  and  also 
well  and  truly  perform,  fulfill,  and  keep  all  and  singular  the 
covenants,  provisos,  and  conditions  contained  in  said  leases 
respectively;  and  which  by,  and  on  the  part  of  said  first  party, 
or  said  second  parties,  is,  or  are,  to  be  paid,  observed,  and 
performed;  and  also  shall,  and  will,  from  time  to  time,  and  at 
all  times,  well  and  sufficiently  save,  defend,  keep  harmless,  and 
indemnified,  said  first  party,  its  successors  and  assigns,  from 
and  against  all  costs,  charges,  damages,  and  expenses  what- 
soever, which  it,  or  they,  or  either  of  them,  shall  or  may  sus- 
tain, or  become  liable  to,  by  reason  or  means  of  said  second 
parties,  or  their  respective  successors  or  assigns,  not  paying  all 
or  any  part  of  the  said  rents  from  time  to  time,  to  become  due 
for,  or  in  respect  of  said  premises,  or  any  part  or  portion  of 
them,  and  their  appurtenances,  assigned  in  the  second  and 
third  articles,  from  and  after  the  execution  of  these  presents, 
or  by  reason  or  means  of  their  not  observing  and  fulfilling  any 
of  the  covenants,  provisos,  or  conditions  in  the  said  leases 
respectively  reserved  and  contained,  which  by  and  on  the  part 
of  said  second  parties,  and  their  respective  successors  and 
assigns,  are  to  be  observed,  performed,  fulfilled,  and  kept. 

ART.  14.  Railroad  companies  to  keep  premises  in  repair, 

When  and  hOW. — Said  second  parties  do  hereby,  for  them- 
selves and  their  respective  successors  and  assigns,  covenant 
with  said  first  party,  its  successors  and  asssigns,  that  said 
second  parties,  and  their  respective  successors  and  assigns, 
shall,  and  will,  during  the  term  granted  in  the  first  article,  and 
during  the  term  that  may  be  granted  in  any  new  lease  which 


NASHVILLE,  CHATTANOOGA   A   ST.   LOUIS    RAILWAY.          593 

may  be  executed,  as  provided  in  the  sixth  article,  and  during 
the  terms  that  may  be  assigned  in  any  new  assignments  of  the 
leases  mentioned  in  the  second,  third,  and  seventh  articles,  at 
their  proper  costs,  and  charges,  well  and  sufficiently  maintain 
and  keep  in  repair  when,  and  as  often  as  the  same  shall  require, 
the  premises  described  in  the  first,  second,  and  third  articles, 
together  with  their  appurtenances,  including  all  rights  of  way, 
ways,  and  other  easements,  all  such  passenger  and  freight 
depot  buildings,  office  buildings,  sheds,  warehouses,  round- 
houses, shops,  and  other  buildings,  erections,  and  structures, 
and  all  such  main  and  side  railroad  tracks,  switches,  crossovers, 
and  turnouts,  and  all  such  other  terminal  facilities,  as  may  be 
hereafter  erected  or  constructed  by  the  first  party,  its  succes- 
sors or  assigns,  upon  the  premises  described  in  the  first,  second, 
and  third  articles.  And  also,  that  in  case  the  same,  or  any 
part  thereof,  shall,  at  any  time  during  said  terms,  or  during 
either  of  them,  be  destroyed  or  injured  by  fire,  wind,  or  light- 
ning, said  second  parties  and  their  respective  successors  and 
assigns,  shall,  and  will,  at  their  proper  costs  and  charges, 
forthwith  proceed  to  rebuild  or  repair  the  same,  in  as  good 
condition  as  the  same  were  before  such  destruction  or  injury. 
Provided,  however,  that  all  and  every  the  sums  or  sum  of 
money  which  shall  be  recovered  or  received  by  said  first  party, 
its  successors  or  assigns,  for  or  in  respect  of  any  insurance 
upon  any  of  such  properties,  shall  be  paid  over  by  said  first 
party,  its  successors  and  assigns,  to  said  second  parties,  their 
respective  successors  or  assigns,  to  be  laid  out  and  expended 
by  them  in  rebuilding  or  repairing  the  property  so  insured,  or 
such  parts  thereof  as  shall  be  destroyed  or  injured  by  fire,  as 
provided  in  the  tenth  article. 

ART.  15.  Terminal  company  has  right  to  enter  on  premises 
and  notify  railways  of  want  of  repair;  when  to  be  re- 
paired.— Said  second  parties  do  hereby,  for  themselves  and 
their  respective  successors  and  assigns,  covenant  with  said  first 
party,  its  successors  and  assigns,  that  it  shall  be  lawful  for 
said  first  party,  its  successors  or  assigns,  by  its  or  their  agent 
or  agents,  at  all  seasonable  times,  during  the  term  granted  in 

38 


594  LEASE    OF    TERMINAL    FACILITIES    AT    NASHVILLE. 

the  first  article,  and  during  the  term  that  may  be  granted  in 
any  new  lease  which  may  be  executed,  as  provided  in  the  sixth 
article,  and  during  the  terms  that  may  be  assigned  in  any  new 
assignment  of  the  leases  mentioned  in  the  second,  third,  and 
seventh  articles,  to  enter  upon  the  premises  described  in  the 
first,  second,  and  third  articles,  and  to  examine  the  condition 
of  the  said  premises;  and,  further,  that  all  wants  of  repara- 
tion which,  upon  such  views,  shall  be  found,  and  for  the 
amendment  of  which  notice  in  writing  shall  be  left  at  the 
premises,  said  second  parties,  and  their  respective  successors 
and  assigns,  shall  and  will,  within  three  calendar  months  next 
after  every  such  notice,  well  and  sufficiently  repair  and  make 
good  accordingly. 

ART.  16.  Covenant  to  peaceably  surrender  at  expiration  of 

lease. — Said  second  parties  do  hereby,  for  themselves  and  their 
respective  successors  and  assigns,  covenant  with  said  first  party, 
its  successors  and  assigns,  that  at  the  expiration  of  the  term 
granted  in  the  first  article,  and  at  the  expiration  of  the  term 
that  may  be  granted  in  any  new  lease  which  may  be  executed, 
as  provided  in  the  sixth  article,  or  at  any  sooner  termination  of 
this  present  lease,  or  of  any  such  new  lease,  said  second  par- 
ties, and  their  respective  successors  and  assigns,  shall,  and  will, 
peaceably  surrender  and  yield  up  unto  said  first  party,  its  suc- 
cessors and  assigns,  the  premises  described  in  the  first  article, 
with  their  appurtenances. 

ART.  17.  Terminal  company  to  re-enter  and  take  posses- 
sion On  default  Of  railways.— Said  second  parties  do  hereby, 
for  themselves  and  their  respective  successors  and  assigns,  cov- 
enant with  said  first  party,  its  successors  and  assigns,  that  if 
the  rents  reserved  in  the  twelfth  article,  or  any  part  thereof, 
shall  be  unpaid  for  fifteen  days  after  any  of  the  days  on  which 
the  same  ought  to  have  been  paid  (although  no  formal  demand 
shall  have  been  made  thereof),  or,  in  case  of  the  breach  or  non- 
performance  of  any  of  the  covenants,  provisos,  or  conditions 
herein  contained,  on  the  part  of  the  said  second  parties,  and 
their  respective  successors  and  assigns,  then  it  shall  be  lawful 
for  said  first  party,  its  successors  or  assigns,  at  any  time  there- 


NASHVILLE,    CHATTANOOGA    &    ST.    LOUIS    RAILWAY.         595 

after,  into  and  u\>on  the  premises  described  in  the  first  article, 
or  any  part  thereof,  in  the  name  of  the  whole,  to  re-enter  and 
the  same  again  to  repossess  and  enjoy,  as  of  its  or  their  former 
estate,  anything  hereinbefore  contained  to  the  contrary  not- 
withstanding. 

In  witness  whereof,  The  said  parties  hereto  have  caused  these 
presents  to  be  signed  by  their  respective  presidents  or  vice- 
presidents,  attested  by  their  respective  secretaries  or  assistant 
secretaries,  and  their  respective  corporate  seals  to  be  hereunto 
affixed,  the  date  above  written. 

LOUISVILLE  &  NASHVILLE  TERMINAL  COMPANY, 

By  M.  H.  SMITH,  President. 

[L.  A  N.  T.  CO.  SEAL.] 

Attest:  J.  H.  ELLIS,  Secretary. 

LOUISVILLE  &  NASHVILLE  RAILROAD  COMPANY, 

By  S.  R.  KNOTT,  First  Vice- President. 

[L.  &  N.  R.  R.  CO.  SEAL.] 

Attest:  J.  H.  ELLIS,  Secretary. 

NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 

By  J.  AV.  THOMAS,  President. 

[N. ,  C.  &  ST.  L.  RY.  SEAL.  ] 

Attest:  J.  H.  AMBROSE,  Secretary. 

Lease,  where  registered. — The  above  lease  was  properly  acknowl- 
edged, and  registered  in  the  register's  office  of  Davidson  county,  Tenn., 
in  book  222,  p.  175. 


596         CONSOLIDATED    FIVE    PER    CENT.    GOLD    MORTGAGE. 


CHAPTER  XLIX. 

CONSOLIDATED  MORTGAGE   TO   SECURE  AN  ISSUE  OF  $20,000,000 
FIVE  PER  CENT.   GOLD  COUPON  BONDS  OF  THE  DENOMINA- 
TION OF  $1,000  EACH.     OTHER  MORTGAGES. 

CONSOLIDATED  MORTGAGE. 

Parties. — This  indenture,  made  and  entered  into  this  second 
day  of  April,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  eighty-eight,  by  and  between  the  Nashville, 
Chattanooga  and  St.  Louis  Railway,  a  corporation  duly  in- 
corporated under  the  laws  of  the  State  of  Tennessee,  and  with 
corporate  rights  in  the  states  of  Kentucky,  Georgia  and  Ala- 
bama, party  of  the  first  part,  hereinafter  called  the  railway: 
and  the  United  States  Trust  Company  of  New  York,  a  corpora- 
tion duly  incorporated  under  the  laws  of  the  State  of  New 
York,  as  trustee,  party  of  the  second  part,  hereinafter  called 
the  trustee,  WITNESSETH  : 

Preamble. — WHEREAS,  The  said  railway  has  heretofore  con- 
structed or  acquired,  and  now  owns,  maintains  and  operates, 
certain  lines  of  railroad  and  branches  within  the  States  of  Ten- 
nessee, Kentucky,  Georgia  and  Alabama,  as  follows: 

Description  of  property,  main  branch,  including  north- 
western.— A  line  of  railroad  commencing  at  Nashville,  in  the 
State  of  Tennessee,  and  running  thence  through  the  counties  of 
Davidson,  Rutherford,  Bedford,  Coffee  and  Franklin,  in  the 
State  of  Tennessee,  the  county  of  Jackson,  in  the  State  of 
Alabama,  and  the  county  of  Dade,  in  the  State  of  Georgia,  to 
Chattanooga,  in  the  county  of  Hamilton,  and  State  of  Tennes- 
see, of  the  total  length  of  one  hundred  and  fifty -one  and  fifteen- 
one-hundredths  miles  (originally  constructed  by  the  Nashville 
&  Chattanooga  Railroad  Company,  which  was  chartered  on  the 
eleventh  day  of  December,  1845),  known  as  the  Chattanooga 
division;  and  a  line  of  railroad  commencing  at  Nashville,  in 
the  State  of  Tennessee,  and  running  thence  to  Hickman,  in  the 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS   RAILWAY.         597 

county  of  Fulton,  in  the  State  of  Kentucky,  of  the  total  length 
of  one  hundred  and  sixty-nine  and  six  one-hundredths  miles, 
(originally  constructed  by  the  Nashville  &  Northwestern  Rail- 
road Company,  which  was  chartered  on  the  twenty-second  day 
of  January,  1852,)  known  as  the  Northwestern  Division; 

Which  two  lines,  having  been  in  due  form  of  law  consol- 
idated, under  the  name  and  style  of  the  Nashville,  Chattanooga 
&  St.  Louis  Railway  (the  Nashville  &  Chattanooga  Railroad 
Company  having  purchased  the  property  of  the  Nashville  & 
Northwestern  Railroad  Company),  now  constitute  the  main  line 
of  the  said  railway;  and  are  subject  to  a  mortgage  to  the 
government  of  the  United  States  to  secure  the  sum  of  $1,000,- 

000,  under  which  bonds  to  the  amount  of  $500,000,  due  June 

1,  1891,  are  outstanding,  and,  further,  subject  to  a  tirst  mort- 
gage made  by  the  railway  to  Adrian  Iselin,  Richard  T.  Wilson, 
and  Vernon  K.  Stevenson,  as  trustees,  dated  July  1,  1873, 
given  to  secure  an  issue  of  bonds  to  the  amount  of  $6,800,000, 
and  due  July  1,  1913,  of  which  $500,000  are  held  to  take  up 
the  bonds  secured  by  said  mortgage  to  the  United  States,  and 
the  remainder  are  outstanding;  and  subject,  also,  to  a  second 
mortgage  made  by  the  railway  to  the  Central  Trust  Company, 
of  New  York,  as  trustee,  dated  January  1,  1881,  to  secure  the 
sum  of  $1,000,000,  due  January  1,  1901,  under  which  bonds 
to  the  amount  of  said  sum  of  $1,000,000  are  now  outstanding. 

1.  The  mortgage,  above  referred  to,  given  to  the  government  of  the 
United  States  for  $1,000,000,  has  been  paid  in  full,  and  bonds  cancelled. 
The  money  to  pay  it  was  raised  by  the  sale  of  bonds  issued  under  this 
mortgage,  to  the  amount  of  $500,000.     The  other  bonds  and  mortgages 
above  referred  to  are  still  outstanding. 

2.  For  Chattanooga  (main)  line,  see  pp.  1-76  herein;  for  Northwestern 
(part  of  main)  line,  see  p.  76  herein. 

Same.    Sparta,  Fayetteville,  and  Huntsville  Branches.— 

Also,  a  line  commencing  at  Tullahoma,  in  the  county  of  Coffee 
and  State  of  Tennessee,  a  point  on  the  said  main  line,  and 
running  thence,  through  the  counties  of  Coffee,  Warren,  and 
White,  to  Sparta,  in  the  said  state,  of  the  total  length  of  sixty 
and  fifty-eight  one-hundredths  miles,  and  known  as  the  Mc- 
Minnville  Branch;  also,  a  line  commencing  at  Decherd,  in  the 


598          CONSOLIDATED    FIVE    PER    CENT.    GOLD    MORTGAGE. 

county  of  Franklin  and  State  of  Tennessee,  a  point  on  the  said 
main  line,  and  running  thence,  through  the  county  of  Franklin, 
to  Fayetteville,  in  the  county  of  Lincoln,  in  said  State  of  Ten- 
nessee, of  the  total  length  of  thirty-eight  and  seventy -eight 
one-hundredths  miles,  and  known  as  the  Fayetteville  Branch; 
also,  a  line  commencing  at  Elora,  a  point  on  the  said  Fayette- 
ville Branch,  and  running  thence  to  Huntsville,  in  the  State  of 
Alabama,  of  the  total  length  of  twenty-six  and  eighty  one- 
hundredths  miles,  and  known  as  the  Huntsville  Branch. 

Which  three  last  described  lines  of  railroad  or  oranches  are 
together  subject  to  a  certain  mortgage  made  by  the  railway  to 
Adrian  Iselin  and  Richard  T.  Wilson,  as  trustees,  dated  Janu- 
ary 1,  1877,  to  secure  an  issue  of  bonds,  due  January  1,  1917, 
under  which  bonds  to  the  amount  of  $750,000  are  now  out- 
standing. 

1.  The  mortgage  and  bonds  above  referred  to  are  still  outstanding. 

2.  For  Sparta  Branch,   see  pp.   166  and   193  herein;  for  Fayetteville 
Branch,  see  p.  152  herein;  for  Huntsville  Branch,  see  pp.  152,  214,  herein; 
for  Bon  Air  extension,  see  p.  199  herein. 

Same.  Tracy  City  Branch.— Also  a  line  commencing  at 
Cowan,  in  the  county  of  Franklin  and  state  of  Tennessee,  a 
point  on  the  said  main  line,  and  running  thence  through  the 
counties  of  Franklin  and  Marion,  in  said  state,  to  Tracy  City, 
in  the  county  of  Grundy,  in  said  state,  of  the  total  length  of 
twenty  miles,  and  known  as  the  Tracy  City  branch,  which  said 
line  of  railroad  or  branch  is  subject  to  a  certain  mortgage 
made  by  the  railway  to  the  Central  Trust  Company  of  New 
York,  as  trustee,  dated  January  1,  1887,  given  to  secure  an 
issue  of  bonds,  due  in  installments  at  several  dates,  under 
which  bonds  to  the  amount  of  $600,000  are  now  outstanding. 

1.  Of  the  bonds  above  referred  to  $160,000  have  been  paid,  leaving  a 
balance  outstanding,    which    are    not  due,    of    $440,000.       The    bonds 
that  have  been  paid  have  not  as  yet  been  canceled,  but  held  by  the 
trustee. 

2.  For  Tracy  City  Branch,  see  p.  277  herein. 

Same.    Jasper,  Inman  Branches.— Also  a  line  commencing 

at  Bridgeport,  in  the  county  of  Jackson  and  state  of  Alabama, 
a  point  on  the  said  main  line,  and  running  thence  to  Dunlap, 


NASHVILLE,  CHATTANOOGA   A    ST.   LOUIS    RAILWAY.  ."'.»'.» 

in  the  county  of  Sequatchio  in  the  state  of  Tennessee,  known 
as  the  Jasper  Branch,  together  with  a  branch  from  said  Jasper 
Branch,  extending  from  Victoria  to  Inman,  )>oth  in  the  county 
of  Marion  and  state  of  Tennessee,  which  said  branches,  in  all, 
are  of  the  total  length  of  forty-three  and  thirty  one  hundredths 
mill's;  the  first  twelve  miles  of  the  branch  first  above  described, 
extending  from  Bridgeport  in  the  state  of  Alabama,  to  Jasper, 
in  the  state  of  Tennessee,  has  been  treated  as  a  portion  of  the 
main  line,  and  is  included  in  and  covered  by  the  mortgage 
hereinabove  particularly  described,  dated  July  1,  1873,  given 
to  secure  §6,800,000,  due  July  1,  1913;  that  portion  thereof, 
from  Jasper  to  Victoria — seven  and  one-half  miles — is  subject 
to  a  mortgage  made  by  the  company  to  E.  L.  Jordan  and  J. 
A.  Satterwhite,  as  trustees,  dated  February  1,  1877,  given  to 
secure  an  issue  of  bonds,  due  January  1,  1906,  under  which 
bonds  to  the  amount  of  §90,000  are  outstanding;  and  the  re- 
mainder from  Victoria  to  Dunlap,  eighteen  and  thirty  one- 
hundredths  miles,  and  from  Victoria  to  Inman,  five  and  tifty 
one-hundredths  miles,  is  subject  to  a  mortgage  made  by  the 
company  to  the  Central  Trust  Company  of  New  York,  as 
trustee,  dated  January  1,  1883,  and  given  to  secure  an  issue 
of  bonds  due  January  1,  1923,  under  which  bonds  to  the  amount 
of  $371,000  are  now  outstanding. 

1.  The  bonds  and  mortgages  above  referred  to  are  still  outstanding. 

2.  For  Jasper,  Inman  &  Sequatchie  Branches,  see  pp.  2(54,  266,  269 
herein. 

Same.  Lebanon  Branch. — Also,  a  line  commencing  at  Nash- 
ville, in  the  State  of  Tennessee,  and  running  thence  to  Lebanon, 
in  the  county  of  Wilson,  in  said  state,  of  the  total  length  of 
twenty-nine  and  twenty-one  one-hundredths  miles,  and  known 
as  the  Lebanon  Branch,  which  is  subject  to  a  mortgage  made 
by  the  railway  to  Vernon  K.  Stevenson  and  Walston  H. 
Brown,  as  trustees,  dated  October  1,  1877,  given  to  secure  an 
issue  of  bonds  due  October  1,  1917,  under  which  bonds  to  the 
amount  of  §300,000  are  outstanding. 

1.  The  bonds  and  mortgages  above  referred  to  are  still  outstanding. 

2.  For  Lebanon  Branch,  see  p.  129  herein. 


600         CONSOLIDATED    FIVE    PER    CENT.   GOLD    MORTGAGE. 

Same.  Centreville  Branch.— Also,  a  line  commencing  at 
Dickson,  in  the  county  of  Dickson  and  State  of  Tennessee,  a 
point  on  the  said  main  line,  and  running  thence,  through  the 
counties  of  Dickson  and  Hickman,  to  the  line  of  Lewis  county, 
in  said  State  of  Tennessee,  of  the  original  total  length,  as  con- 
structed, of  forty-seven  miles,  but  which  line,  by  straighten- 
ing, has  been  reduced  to  forty-five  and  seventy  one-hundredths 
miles,  and  known  as  the  Centreville  Branch,  which  is  subject 
to  a  mortgage  made  by  the  railway  to  the  Central  Trust  Com- 
pany of  New  York,  as  trustee,  dated  January  1,  1883,  given 
to  secure  an  issue  of  bonds  due  January  1,  1923,  under  which 
bonds  to  the  amount  of  $376,000  are  outstanding. 

1.  The  bonds  and  mortgage  above  referred  to  are  still  outstanding. 

2.  For  Centreville  Branch,  see  p.  227  herein. 

BOH  Air  Brancb. — Also,  a  line  (being  an  extension  of  the 
said  hereinbefore  described  McMinnville  Branch)  running  from 
Sparta,  in  the  county  of  White,  and  State  of  Tennessee,  to 
Bon  Air,  in  said  county  and  state,  of  the  total  length  of  six 
and  fifty  one-hundredths  miles,  known  as  the  Bon  Air  Branch, 
which  is  subject  to  a  mortgage  made  by  the  railway  to  the 
Central  Trust  Company  of  New  York,  as  trustee,  dated  July 
1,  1887,  to  secure  an  issue  of  bonds,  due  July  1,  1917,  under 
which  bonds  to  the  amount  of  $130,000  are  outstanding. 

1.  Of  the  bonds  above  referred  to,  $16,000  have  been  exchanged  for 
sixteen  bonds  under  this  mortgage,  leaving  $114,000  still  outstanding. 

2.  For  Bon  Air  Branch,  see  p.  199  herein. 

Same.    Duck  River  Valley,  or  Columbia  Branch.— Also,  a 

line  commencing  at  Columbia,  in  the  county  of  Maury,  and 
State  of  Tennessee,  and  running  thence,  through  the  county  of 
Marshall,  to  Fayetteville,  in  the  county  of  Lincoln,  in  said 
State  of  Tennessee,  a  point  on  the  Fayetteville  Branch,  of  the 
total  length  of  forty-seven  and  ninety-two  one-hundredths 
miles,  and  known  as  the  Duck  River  Valley  Branch,  which  was 
originally  owned  by  the  Duck  River  Valley  Narrow  Gauge 
Railroad  Company,  and  was  thereafter  duly  purchased  by  and 
conveyed  to  the  company,  which  is  subject  to  a  first  mortgage 
made  by  the  said  Duck  River  Valley  Narrow  Gauge  Railroad 


NASHVILLE,  CHATTANOOGA    A    ST.   LOUIS    RAILWAY.        601 

Company  to  Edgar  Jones  and  Lucius  Frierson,  as  trustees,  dated 
January  1,  1876,  given  to  secure  an  issue  of  bonds  due  Janu- 
ary 1,  181)6,  under  which  bonds  to  the  amount  of  $250,000  are 
outstanding;  and  subject  also  to  a  second  mortgage,  made  by 
the  said  Duck  River  Valley  Narrow  Gauge  Railroad  Company 
to  G.  M.  Fogg  and  Thomas  D.  Fite,  as  trustees,  dated  Novem- 
ber 1,  1879,  given  to  secure  a  further  issue  of  bonds,  due 
November  1,  1909,  under  which  bonds  to  the  amount  of 
$140,000  are  outstanding. 

1.  The  $250,000  of  bonds,  above  referred  to,  have  been  taken  up  and 
are  now  held  by  the  trustee.     The  money  to  pay  them  was  raised  by  a 
sale  of  two  hundred   and   fifty  bonds   under   this  mortgage.     Of  the 
8140,000  of  bonds  above  referred  to,  all  have  been  taken  up  save  822,000, 
which  amount  is  now  outstanding.     The  money  to  pay  these  was  raised 
by  sale  of  one  hundred  and  eighteen  bonds  under  this  mortgage. 

2.  For  Duck  River  Valley  Branch,  see  p.  250  herein. 

Same.  Shelby  ville  branch. — Also,  a  branch  commencing  at 
Wartrace,  in  the  county  of  Bedford,  and  State  of  Tennessee,  a 
point  on  the  said  main  line,  and  running  thence  to  Shelbyville, 
in  the  said  county  of  Bedford,  of  the  total  length  of  eight  and 
one  one-hundredth  miles,  known  as  the  Shelbyville  Branch, 
but  which  has  been  treated  as  a  part  of  the  main  line  and  which 
is  embraced  in  the  said  hereinbefore  described  mortgage  given 
to  secure  the  sum  of  $6,800,000. 

1.  The  bonds  above  referred  to  are  still  outstanding. 

2.  For  Shelbyville  Branch,  see  p.  286  herein. 

Same.  West  Nashville  Branch.— Also  a  branch,  commencing 
at  a  point  on  the  said  hereinbefore  described  Northwestern 
Division,  in  the  vicinity  of  Nashville  aforesaid,  in  the  State  of 
Tennessee,  and  running  thence  to  West  Nashville,  of  the  length 
in  all  of  three  and  twenty  one-hundredths  miles,  known  as  the 
West  Nashville  Branch,  und  which  is  not  covered  by  any  mort- 
gage; and, 

For  West  Nashville  Branch  see  p.  318  herein. 

Amount  of  underlying  mortgages.— WHEREAS,  The  said 

hereinbefore  described  main  line  and  the  said  above  described 
several  lines  and  branches,  taken  as  a  whole,  are  subject  to  the 
several  mortgages  hereinbefore  mentioned,  aggregating  the 


602          CONSOLIDATED    FIVE    PER    CENT.    GOLD    MORTGAGE. 

sum  of  ten  million  eight  hundred  and  seven  thousand  dollars 
(110,807,000),  in  all;  and, 

Since  this  mortgage  was  written  $1,044,000  of  the  bonds  above  re- 
ferred to  have  been  taken  up,  leaving  $9,763,000  still  outstanding  at  this 
writing.  These  added  to  the  amount  of  bonds  now  issued  under  this 
five  per  cent,  mortgage,  which  is  $6,233,000,  makes  a  total  bonded  in- 
debtedness of  $15,996,000  now  existing. 

Railway  company  liable  for  all.— WHEREAS,  All  the  bonds 

representing  which  amount,  although  secured  on  said  main  line 
or  branches  separately,  are  the  bonds  of  the  railway,  except  as 
to  the  Duck  River  Valley  Branch,  above  set  forth,  the  said 
two  issues  of  bonds  upon  which  were  made  by  the  said  Duck 
River  Valley  Narrow  Gauge  Railroad  Company  prior  to  the 
conveyance  of  the  said  road  to  the  railway,  and  for  which 
bonds  the  railway  is  responsible,  having  assumed  the  payment 
thereof;  and 

Said  underlying  bonds  to  be  taken  up.— WHEREAS,  The  rail- 
way proposes  to  take  up,  by  redemption,  purchase,  exchange, 
or  payment,  and  to  retire  and  cancel  all  of  said  several  issues 
of  bonds  so  existing  and  outstanding,  secured  by  said  several 
existing  mortgages,  both  upon  the  main  line  and  upon  the 
said  several  connecting  lines  and  branches,  and  each  of  them, 
as  is  hereinafter  particularly  provided;  and 

After-acquired    property   subject   to    this  mortgage.— 

WHEREAS,  The  railway  may,  from  time  to  time  hereafter, 
build  or  acquire  other  lines  of  road,  and  may  extend  the  same, 
or  the  main  line  and  branches  hereinbefore  described,  or  some 
of  them,  or  may  construct  other  branches,  and  proposes  to 
make  the  same  subject  to  the  lien  hereof,  and  to  issue  bonds 
hereunder  therefor,  as  is  hereinafter  particularly  provided; 
and 

Since  the  execution  of  this  mortgage  the  railroad  company  has  pur- 
chased and  leased  the  following  property:  (1)  Tennessee  &  Coosa  Rail- 
road (see  p.  287  herein);  (2)  the  Western  &  Atlantic  Railroad  (see  p.  335 
herein);  (3)  the  Rome  Railroad  (see  p.  379  herein);  (4)  the  Middle  Ten- 
nessee &  Alabama  Railroad  (see  p.  406  herein);  (5)  the  Chattanooga 
Terminal  Railway  (see  p.  448  herein);  the  Tennessee  Midland  Railroad 
(see  p.  455  herein;;  (6)  the  Paducah,  Tennessee  &  Alabama  Railroad  (see 
p.  487  herein);  (7)  the  Louisville  &  Nashville  Terminal  Company's  railroad 


NA8HVII.KK,   <  II  ATTA.\o<MJA    A    ST.   LOUIS    RAILWAY.          608 

property  (see  chapter  XL VIII.  herein);  (7)  the  Allen's  Creek  extension 
(see  p.  2~'8  herein,  note  2);  (**)  the  Swan  Creek  extension  (see  p.  228 
herein,  note  3);  (y)  the  Huntsville-iiadsden  extension  (see  p.  288  herein); 
(10)  the  West  Nashville  extension  (see  p.  318  herein,1. 

Declaration  of  power  to  borrow  money,  issue  bonds  and 

Mortgages. — WHEREAS,    The  railway  is  fully  authorized   and 

empowered  to  borrow  money  for  its  corporate  purposes,  and 
to  execute  bonds  therefor,  and  to  secure  the  payment  thereof 
by  mortgage  or  pledge  of  its  property  and  income,  and  to  issue 
bonds  in  lieu  of,  or  in  exchange  or  substitution  for,  or  in  pay- 
ment of  any  of  the  issues  of  bonds  secured  by  mortgages  upon 
the  said  main  line  and  upon  the  several  connecting  lines  or 
branches,  or  any  of  them,  or  upon  any  of  the  lines  of  railroad 
owned  or  oj>erated  by  it,  and  on  such  future  line  or  lines,  ex- 
tensions or  branches,  as  shall  hereafter  be  built  or  acquired  by 
it;  and  is  also  authorized  and  empowered  to  mortgage  the 
whole  or  any  part  of  its  road,  connecting  lines,  branches,  and 
all  and  singular  its  property  of  whatever  kind,  with  its  fran- 
chises, to  secure  any  amount  due  or  to  become  due;  and, 
For  verification  of  powers  above  set  out,  refer  to  index. 

Stockholders'  meeting;  issue  authorized  of  $20,000,000.- 

WHEREAS,  The  railway,  in  the  due  exercise  of  its  said  powers, 
did,  by  resolution,  on  the  eighteenth  day  of  February,  1888, 
call,  and  did  in  due  form  of  law,  cause  a  meeting  of  the 
stockholders  of  the  said  railway  to  be  duly  held  in  the  city  of 
Nashville,  in  the  state  of  Tennessee,  on  the  twenty-tirst  day  of 
March,  1888,  which  said  meeting  was  duly  adjourned  to 
Wednesday,  the  twenty-eighth  day  of  March,  1888,  at  which 
adjourned  meeting,  so  held  on  said  day,  more  than  a  majority 
of  the  stockholders  of  the  said  railway  being  present  and  voting 
in  person  or  by  proxy,  the  following  resolutions  were  unani- 
mously adopted,  viz.  : 

Resolution  authorizing  iSSUe.— Resolved,  By  the  stock- 
holders of  the  Nashville,  Chattanooga  and  St.  Louis  Railway 
that,  for  the  purpose  of  redeeming,  purchasing,  exchanging, 
paying  and  retiring  the  lx>nds  of  the  Nashville,  Chattanooga  & 
St.  Louis  Railway,  now  outstanding  and  issued  by  this  com- 


604         CONSOLIDATED    FIVE    PER    CENT.    GOLD    MORTGAGE. 

pany,  and  those  issued  by  the  Duck  River  Valley  Narrow 
Gauge  Railroad  Company,  and  for  constructing  or  acquiring 
new  railroad  and  for  changing  the  gauge  of  the  Duck  River 
Valley  Railroad  and  the  Centreville  Branch  to  standard  gauge, 
and  for  the  betterment,  improvement  and  equipment  of  its  line 
of  railroad  and  branches,  the  president  and  secretary  of  the 
company  are  hereby  authorized  and  directed  to  execute,  in  its 
corporate  name,  and  to  issue  from  time  to  time,  as  hereinafter 
provided,  its  corporate  bonds,  to  consist  of  a  series  of  coupon 
bonds,  each  for  the  sum  of  one  thousand  dollars  ($  1,000),  and 
bearing  five  per  cent,  per  annum  interest,  to  be  designated 
first  consolidated  mortgage  five  per  cent,  gold  coupon  bonds, 
to  the  amount  in  the  aggregate  of  twenty  millions  of  dollars 
($20,000,000),  payable  April  1,  1928,  in  gold  coin  of  the 
United  States,  not  inferior  to  the  present  standard,  with  in- 
terest at  five  per  cent,  per  annum,  payable  half  yearly,  on  the 
first  days  of  April  and  October,  in  like  gold  coin;  of  which 
issue  the  sum  of  ten  million  eight  hundred  and  seven  thousand 
dollars  ($10,807,000)  shall  be  held  to  take  up  the  present  out- 
standing debt  upon  the  several  lines  and  branches  of  the  com- 
pany by  redemption,  purchase,  exchange,  or  payment,  on  the 
terras  to  be  provided  in  the  mortgage;  and  of  which  issue  the 
difference  between  the  present  average  mortgage  debt  (being 
sixteen  thousand  six  hundred  and  twenty  and  seventy -eight  one 
hundredths  dollars  ($16,620.78)  per  mile  or  thereabouts)  and 
twenty  thousand  dollars  ($20,000)  per  mile  upon  the  main  line, 
and  the  several  branches,  being  six  hundred  and  fifty  and 
twenty-one  one  hundredths  miles,  issued  for  and  devoted  to 
the  change  of  gauge  of  the  Duck  River  Valley  Railroad  and 
the  Centreville  Branch,  and  the  betterment  and  improvement 
of  the  main  line,  and  the  several  other  lines  and  branches  of 
the  company,  and  for  other  legitimate  purposes  in  the  im- 
provement and  development  of  the  company's  property,  of 
which  the  sum  of  one  million  five  hundred  thousand  dollars 
($1,500,000)  shall  be  certified,  issued  and  delivered  at  once  to 
the  company,  and  no  more,  and  the  remainder  of  which  may 
be  issued  from  time  to  time,  when  duly  authorized  at  a  meet- 


NASHVILLE,  CHATTANOOGA    A    ST.   LOUIS    RAILWAY.          605 

ing  of  the  stockholders,  and  from  which  general  issue  further 
bonds  may  hereafter  be  certified  and  duly  issued  for  new  rail- 
road, or  newly  acquired  railroad,  as  provided  in  the  mortgage 
hereinafter  referred  to,  at  the  rate  of  twenty  thousand  dollars 
($20,000;  per  mile  of  constructed  road,  provided  that  of  the 
bonds  hereby  authorized  over  and  above  those  which  shall  be 
held  for  exchange  or  satisfaction  of  the  ten  million  eight  hun- 
dred and  seven  thousand  dollars  ($10,807,000)  of  bonds  now 
outstanding  as  a  lien  upon  the  company's  property,  the  sum  of 
one  million  five  hundred  thousand  dollars  ($1,500, 000)  so  above 
authorized  shall  be  at  once  issued,  certified  and  delivered  to  the 
company,  without  further  vote  of  the  stockholders;  but  no 
bonds  beyond  said  sum  of  ten  million  eight  hundred  and  seven 
thousand  ($10,807,000)  dollars,  and  one  million  five  hundred 
thousand  dollars  ($1,500,000)  shall  hereafter  be  issued  under 
said  mortgage  for  newly  acquired  property  or  new  construc- 
tion or  otherwise,  without  a  vote  of  the  stockholders  of  the 
company  at  a  meeting  first  obtained. 

For  the  purjM)se  of  securing  the  payment  of  said  bonds  the 
president  and  secretary  are  authorized  and  directed  to  execute 
in  its  corporate  name  and  on  its  behalf  and  under  its  corporate 
seal  and  to  deliver  to  the  United  States  Trust  Company  of  New 
York  a  mortgage  or  deed  of  trust,  bearing  date  the  second  day 
of  April,  A.  D.  1888,  conveying  by  way  of  mortgage  the  main 
line  of  railroad  of  the  company  and  all  its  connecting  lines  and 
branches,  as  now  constructed  and  in  operation  as  aforesaid,  and 
all  railroads  owned,  or  which  may  l>e  acquired  or  created  by  con- 
struction, purchase,  consolidation,  lease,  or  otherwise,  by  the 
company  within  and  without  the  said  State  of  Tennessee,  subject 
to  the  exemptions  in  the  mortgage  hereinafter  referred  to  con- 
tained, and  all  equipment  now  or  at  any  time  hereafter  owned 
by  the  company  for  use  upon  said  railroads  so  covered  hereby 
within  and  without  the  said  State  of  Tennessee,  and  all  and 
singular  the  property  of  every  name  and  nature,  real,  personal, 
mixed,  acquired  and  to  be  acquired,  in  possession  or  expectancy, 
including  the  corporate  and  other  franchises  of  the  company, 
subject  to  the  existing  liens  thereon,  amounting  to  the  sum  of 


606         CONSOLIDATED    FIVE    PER    CENT.     GOLD    MORTGAGE. 

ten  million,  eight  hundred  and  seven  thousand   dollars  ($10- 
807,000). 

Resolved  further,  That  the  form  of  bond  and  mortgage  now 
presented  be  and  the  same  is  hereby  approved  with  such  changes 
or  modifications,  if  any,  as  the  board  of  directors  may  approve. 

Of  the  $20,000,000  bonds  authorized  to  be  issued  as  above,  only 
86,233,000  of  bonds  have  actually  been  issued  at  this  writing. 

Directors  alSO  authorize  issue.— AND  WHEREAS,  The  board 
of  directors  of  the  said  railway  has  duly  authorized  and  directed 
its  president  and  secretary  to  execute  and  issue  the  said  series 
of  first  consolidated  mortgage  gold  bonds,  for  one  thousand 
dollars  each,  numbered  from  one  (1)  upwards — payable  in 
forty  years  with  interest  at  five  per  cent.,  payable  semi-annu- 
ally  on  the  first  days  of  October  and  April — and  to  secure  the 
same  by  the  execution  and  delivery  of  this  instrument ;  which 
bonds  and  coupons  are  substantially  in  the  form  following, 
to  wit: 

UNITED  STATES  OF  AMERICA, 
STATE  OF  TENNESSEE, 

Nashville,  Chattanooga  &  St.  Louis  Railway  First  Consolidated  Mortgage 
Five  Per  Cent.  Gold  Coupon  Bond. 

No.  -  $1,000. 

The  Nashville,  Chattanooga  &  St.  Louis  Railway,  for  value  received, 
acknowledges  itself  indebted  to  the  United  States  Trusts  Company  of 
New  York,  or  bearer,  in  the  sum  of  one  thousand  dollars,  which  will  be 
due,  and  which  it  will  pay  to  the  holder  hereof,  at  its  agency  in  the  city 
of  New  York,  on  the  first  day  of  April,  in  the  year  1928,  in  gold  coin  of 
the  United  States,  not  inferior,  to  the  present  standard,  with  interest  at 
the  rate  of  five  per  cent.  (5)  per  annum,  payable  at  said  agency,  in  like 
gold  coin,  semi-annually,  on  the  first  days  of  October  and  April,  in  each 
year,  on  presentation  of  the  coupons  for  interest,  hereto  attached,  when 
respectively  due;  which  said  coupons,  when  paid,  are  to  be  surrendered. 

This  bond  is  one  of  a  series  of  not  exceeding  twenty  thousand  bonds 
of  like  amount,  tenor,  and  date,  numbered  consecutively  from  one  (1) 
upwards,  securing  in  the  aggregate  a  sum  not  to  exceed  twenty  millions 
of  dollars  issued  and  to  be  issued  by  said  railway,  at  a  rate  not  to  ex- 
ceed twenty  thousand  dollars  per  mile  of  railroad  at  the  time  con- 
structed, and  covered  by  the  mortgage  hereinafter  mentioned,  and  to 
be  used  in  part  for  taking  up  by  redemption,  purchase,  exchange, 
payment  or  otherwise  its  existing  bonded  indebtedness,  on  the  terms 


NASHVILLE,  CHATTANOOGA   <fe    ST.   LOUIS    RAILWAY.          607 

and  pursuant  to  the  conditions  set  out  in  the  said  mortgage,  each  bond 
and  the  coupons  attached  being  equally  secured  by  mortgage  of  even 
date  herewith,  duly  executed  and  delivered  by  said  railway  to  the 
United  States  Trust  Company  of  New  York,  as  trustee,  and  duly  re- 
corded, conveying  all  and  singular,  the  main  line  of  railroad  and  all 
connecting  lines  or  branches,  and  such  further  lines,  extensions  or 
branches  as  may  be  hereafter  constructed  or  acquired,  upon  the  terms 
particularly  set  forth  in  said  mortgage,  and  all  appurtenant  property- 
rights,  franchises,  and  privileges  now  owned,  or  which  may  be  here- 
after acquired  by  the  said  railway,  and  subject  to  the  exceptions  therein 
contained  as  to  future  acquired  property;  subject,  however,  to  certain 
prior  mortgages  on  said  main  line,  connecting  lines  and  branches  as 
now  constructed,  which  are  liens  thereon  and  outstanding  as  security 
for  the  payment  of  certain  issues  of  bonds,  as  specifically  set  forth  and 
described  in  said  mortgage,  amounting  in  all  to  the  sum  of  ten  millions 
eight  hundred  and  seven  thousand  dollars  (810,807.000),  and  for  the  fund, 
ing  and  discharge  whereof,  by  exchange,  payment,  or  otherwise,  an 
equal  amount  of  the  bonds  of  this  issue  is  to  be  reserved  as  provided  in 
said  mortgage,  so  that  upon  such  funding  and  discharge  of  said  prior 
bonds,  the  series  of  bonds  whereof  this  is  one  shall  be  secured  by  a  first 
mortgage  upon  said  main  line,  connecting  lines  and  branches,  and  each 
of  them,  and  meanwhile  shall  be  a  first  mortgage  upon  any  others  here- 
after acquired,  built  or  constructed,  or  any  extension  thereof,  within  or 
without  the  state  of  Tennessee,  subject  to  the  limitations  and  pursuant 
to  the  provisions  contained  in  the  said  mortgage. 

This  bond  may,  at  the  option  of  the  holder,  be  registered  at  the  office 
of  said  railway,  in  the  cities  of  Nashville  or  New  York,  and  after  such 
registration  made,  and  noted  by  indorsement  thereon,  unless  thereafter 
registered  payable  to  bearer,  will  be  payable  only  to  such  person  as  on 
such  registry,  noted  by  indorsement  thereon,  shall  appear,  from  time  to 
time,  to  be  the  last  registered  owner;  but  such  registration  shall  not 
affect  the  negotiability  of  the  coupons. 

This  bond  shall  not  become  obligatory  until  authenticated  by  the 
certificate  indorsed  thereon,  duly  signed  by  the  trustee. 

In  testimony  whereof,  the  said  railway  has  affixed  its  corporate  seal, 
and  caused  these  presents  to  be  signed  by  its  president  and  secretary,  at 
Nashville,  in  the  State  of  Tennessee,  the  seco'nd  day  of  April,  one  thou- 
sand eight  hundred  and  eighty-eight. 

THK  NASHVILLE,  CHATTANOOGA  &  ST.  Loins  RAILWAY, 

By President. 

Secretary. 

[FORM  OF  COUPON.] 

825.  No. 

The  Nashville.  Chattanooga  &  St.  Louis  Railway  will  pay  to  bearer, 
at  its  agency  in  the  city  of  New  York,  in  gold  coin  of  the  United  States, 

on  the day  of  —  — ,  18 — ,  twenty-five  dollars,  being  six  months 

interest  on  its  first  consolidated  mortgage  bond  No. . 

Secretary. 


608          CONSOLIDATED    FIVE    PER    CENT.    GOLD    MORTGAGE. 

[TRUSTEE'S  CERTIFICATE.] 

The  United  States  Trust  Company  of  New  York  certifies  that  the 
within  bond  is  one  of  an  issue  of  bonds,  not  to  exceed  in  all  twenty 
million  dollars,  referred  to  and  described  in  a  mortgage  bearing  date 
the  second  day  of  April,  1888,  executed  and  delivered  to  it,  as  trustee, 
by  the  Nashville,  Chattanooga  &  St.  Louis  Railway. 

UNITED  STATES  TRUST  COMPANY  OF  NEW  YORK,  Trustee, 

By President. 

What  property  transferred  to  trustee  to  secure  bonds; 

main  line. — Now,  therefore,  in  order  to  secure  the  punctual 
payment  of  said  bonds  and  coupons,  when  respectively  due  and 
payable,  to  the  persons  and  corporations  who,  from  time  to 
time,  may  have  the  right  to  demand  such  payment,  without 
priority  of  one  over  another  by  reason  of  the  dates  of  issue  or 
negotiation  of  the  bonds,  or  otherwise,  and  in  consideration  of 
the  premises  and  the  sum  of  one  dollar  ($1)  paid  to  it  by  the 
United  States  Trust  Company  of  New  York,  trustee,  the  re- 
ceipt of  which  is  acknowledged,  the  said  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  has  granted,  bargained,  sold, 
assigned,  released,  conveyed,  and  confirmed,  and  by  these  pres- 
ents does  grant,  bargain,  sell,  assign,  release,  convey,  and  con- 
firm unto  the  said  United  States  Trust  Company  of  New  York, 
as  trustee,  and  to  its  successors  in  the  trust,  for  the  common 
and  equal  benefit  of  all  lawful  holders  of  said  bonds  or  cou- 
pons: All  and  singular  its  said  main  line  of  railroad,  extending 
from  the  city  of  Hickman,  in  the  county  of  Fulton,  State  of 
Kentucky,  to  the  city  of  Chattanooga,  in  the  county  of  Hamil- 
ton, State  of  Tennessee,  including  the  Northwestern  and  Chat- 
tanooga Divisions  of  said  main  line,  and  passing  through  the 
county  of  Fulton,  in  the  State  of  Kentucky,  and  the  counties 
of  Obion,  Weakley,  Carroll,  Humphreys,  Cheatham,  Dickson, 
Benton,  Davidson,  Rutherford,  Bedford,  Coffee,  Franklin,  and 
Hamilton,  in  the  State  of  Tennessee,  the  county  of  Jackson,  in 
the  State  of  Alabama,  and  the  county  of  Dade,  in  the  State  of 
Georgia: 

For  main  line,  see  pp.  1-76  herein. 

Same.  Sparta  or  McMinnville  Branch.— Also  its  said  line 

commencing  at  Tullahoma,  in  the  county  of  Coffee,  State  of 


NASHVILLE,    CHATTANOOGA   A    ST.    LOUIS    RAILWAY.         609 

Tennessee,  and  running  thence,  through  the  counties  of  Coffee 
and  Warren,  to  Sparta,  in  the  county  of  White,  in  said  State, 
known  as  the  McMinnville  Branch; 

For  Sparta  or  McMinnville  Branch,  see  pp.  166,  192,  199  herein. 

Same.  Fayetteville  Branch.— Also  its  said  line  commenc- 
ing at  Decherd,  in  the  county  of  Franklin  and  State  of  Ten- 
nessee, and  running  thence  to  Fayetteville,  in  the  county  of 
Lincoln,  in  said  State,  and  known  as  the  Fayetteville  Branch; 

For  Fayetteville  Branch,  see  p.  152  herein. 

Same.  HuntSVllle  Branch.— Also  its  said  line  commencing 
at  Elora,  in  the  county  of  Lincoln  and  State  of  Tennessee,  and 
running  thence  to  Huntsville,  in  the  £>tate  of  Alabama,  and 
known  as  the  Huntsville  Branch; 

For  Huntsville  Branch,  see  pp.  152,  214  herein. 

Same.  Tracy  City  Branch.— Also  its  said  line  commencing 
at  Cowan,  in  the  county  of  Franklin,  State  of  Tennessee,  and 
running  thence  through  the  counties  of  Franklin  and  Marion, 
to  Tracy  City,  in  the  county  of  Grundy,  in  said  state,  and 
known  as  the  Tracy  City  Branch; 

For  Tracy  City  Branch  see  p.  277  herein. 

Same.  Jasper  Branch. — Also  its  said  line  commencing  at 
Bridgeport,  in  the  county  of  Jackson,  in  the  State  of  Ala- 
bama, and  running  thence  to  Dunlap,  in  the  county  of  Sequat- 
chie,  in  the  State  of  Tennessee,  and  known  as  the  Jasper 
Branch; 

For  Jasper  Branch  see  pp.  264,  266,269  herein. 

Same.  Inman  Branch. — Also  its  said  line  commencing  at 
Victoria,  a  point  on  the  said  Jasper  Branch,  and  running  thence 
to  Inman,  all  in  the  county  of  Marion  and  State  of  Tennessee; 

For  Inman  Branch  see  pp.  264,  266,  269,  herein. 

Same.  Lebanon  Branch. — Also  its  said  line  commencing  at 
Nashville,  in  the  State  of  Tennessee,  and  running  thence  to 
Lebanon,  in  the  county  of  Wilson,  in  said  state,  known  as  the 
Lebanon  Branch; 

For  Lebanon  Branch  see  p.  129  herein. 

Same.  Centreville  Branch.— Also  its  said  line  commencing 
at  Dickson,  in  the  county  of  Dickson,  state  of  Tennessee,  and 

39 


610         CONSOLIDATED    FIVE    PER   CENT.   GOLD    MORTGAGE. 

running  thence  through  the  county  of  Hickman,  in  said  state, 
to  the  line  of  Lewis  county  in  said  state,  and  known  as  the 
Centreville  Branch; 

For  Centreville  Branch,  see  p.  227  herein. 

Same.  Bon  Air  Brancb. — Also  its  said  line  (being  an  exten- 
sion of  the  McMinnville  Branch,  hereinbefore  described),  com- 
mencing at  Sparta,  in  the  county  of  White,  state  of  Tennessee, 
and  running  thence  to  Bon  Air,  in  said  county  and  state, 
known  as  the  Bon  Air  Branch; 

For  Bon  Air  Branch,  see  p.  199  herein. 

Same.    Duck  River  Valley,  or  Columbia  Branch.— Also  its 

said  line  commencing  at  Columbia,  in  the  county  of  Maury 
and  state  of  Tennessee,  and  running  thence  through  the  county 
of  Marshall,  to  Fayetteville,  in  the  county  of  Lincoln,  in  said 
state  of  Tennessee,  and  known  as  the  Duck  River  Valley 
Branch; 

For  Duck  River  Valley  Branch,  see  p.  250  herein. 

Same.  Shelbyville  Branch. — Also  its  said  line  commencing 
at  Wartrace,  in  the  county  of  Bedford,  in  the  state  of  Tennes- 

* 

see,  and  running  thence  to  Shelbyville,  in  said  county,  known 
as  the  Shelbyville  Branch. 

For  Shelbyville  Branch,  see  p.  286  herein. 

Same.  West  Nashville  Branch.— Also  its  said  line  com- 
mencing at  a  point  on  the  main  line  in  the  vicinity  of  Nash- 
ville, Tenn.,  and  running  thence  to  West  Nashville  in  said 
state,  known  as  the  West  Nashville  Branch. 

For  West  Nashville  Branch,  see  p.  318  herein. 

Same.  Other  properties,  exceptions,  after-acquired  prop- 
erty.— And  also  all  railroads  and  railroad  property  which  the 
said  railway  now  owns  or  may  hereafter  acquire,  build  or  cre- 
ate within  or  without  the  State  of  Tennessee,  whether  by 
purchase,  construction,  consolidation,  or  otherwise,  except 
as  hereinafter  particularly  stated  in  sections  first  and  fifth,  and 
also  including  all  double  or  additional  tracks  which  said  rail- 
way shall  acquire  by  purchase,  lease,  construction,  consolida- 
tion, or  otherwise,  in  whatever  state  the  same  may  be  situated; 
and  all  rights  of  way,  depots,  depot  grounds,  and  lands  used  in 


NASHVILLE,  CHATTANOOGA   4    ST.   LOUIS    RAILWAY.          611 

connection  with  the  operation  and  maintenance  of  said  railroad, 
railroads,  divisions,  branches,  or  extensions,  or  any  thereof 
now  owned  by  said  railway,  or  hereafter  in  anywise  by  it  to  be 
acquired,  subject  as  aforesaid,  and  all  side  tracks,  spur  tracks, 
switches,  or  turnouts,  connected  with  and  appurtenant  to  said 
railroad,  or  railroads,  main  Hue,  divisions,  or  branches  thereof, 
and  all  bridges,  viaducts,  culverts,  fences,  and  other  structures 
and  all  depots,  station  houses,  engine  houses,  car  houses, 
freight  houses,  wood  houses,  coal  houses,  and  other  buildings, 
and  all  machine  shops  and  other  shops  now  held  or  acquired, 
or  hereafter  to  be  acquired  or  held  by  the  railway,  its  succes- 
sors or  assigns,  or  either  of  them,  for  use  in  connection  with 
such  railroad  or  railroads,  divisions  or  branches,  or  any  thereof, 
as  it  may  hereafter  acquire,  within  or  without  the  said  State  of 
Tennessee,  except  as  hereinafter  mentioned,  and  including  also 
all  locomotives,  tenders,  cars,  and  other  rolling  stock  and 
equipment  of  whatever  name  and  nature,  and  all  machinery, 
tools,  implements,  fuel,  supplies,  and  material  for  constructing, 
maintaining,  operating,  repairing,  and  replacing  the  same, 
acquired  and  to  be  acquired,  or  any  part  thereof,  including  also 
all  revenues,  rates,  tolls,  as  well  as  all  money  or  income  arising 
or  to  arise  from  said  railroad,  or  other  the  premises  hereinbe- 
fore  expressed  to  be  conveyed,  or  any  of  them,  or  any  part 
thereof;  and  also  all  corporate  and  other  franchises,  rights, 
privileges,  and  immunities  now  owned,  held,  and  enjoyed  by, 
or  conferred  upon  the  said  railway  within  or  without  the  said 
State  of  Tennessee,  except  as  hereinafter  mentioned,  connected 
with  or  related  to  the  said  railway  or  railways,  acquired  or  to 
be  acquired,  constructed  or  to  be  constructed,  and  necessary  to 
the  full,  complete  and  convenient  use,  operation,  and  enjoy- 
ment of  the  said  above  described  premises  and  property  or  any 
part  thereof,  it  being  the  intention  hereof  to  include  herein, 
generally,  all  the  property  of  the  said  railway,  real,  personal, 
and  mixed,  in  possession  and  in  expectancy,  now  owned  or 
hereafter  to  be  in  anywise  acquired  within  and  without  the  said 
State  of  Tennessee,  together  with  all  and  singular  the  tenements, 
hereditaments,  rights,  members,  easements  and  appurtenances 


612          CONSOLIDATED    FIVE    PER    CENT.   GOLD    MORTGAGE. 

of  the  said  railroad  and  premises  hereinbefore  expressed  to  be 
conveyed,  or  any  of  them,  or  any  part  thereof,  belonging  or  in 
anywise  appertaining  thereto,  -or  at  any  time  held  or  enjoyed 
herewith,  and  the  reversion  and  reversions,  remainder  and 
remainders,  tolls,  incomes,  revenues,  rents,  issues  and  profits 
thereof,  and  also  all  of  the  estate,  right,  title  and  interest, 
property,  possession,  claim  and  demand  whatsoever,  as  well  in 
law  as  in  equity,  of  the  railway  in  and  to  the  same,  except  as 
hereinafter  provided. 

For  examination  of  property  acquired  since  the  execution  of  this 
mortgage,  see  notes  to  similar  heading  in  first  part  of  this  mortgage. 

To  have  and  to  hold,  all  and  singular,  the  above  mentioned 
and  described  railroads,  extensions,  branches,  rolling  stock, 
franchises  and  other  property,  and  all  other  the  premises  and 
property  hereinbefore  expressed  and  hereby  conveyed,  with 
the  appurtenances,  unto  and  to  the  use  of  the  said  United 
States  Trust  Company  of  New  York,  and  its  successor  or  suc- 
cessors in  said  trust — upon  and  for  the  uses  and  purposes,  and 
upon  and  subject  to  the  conditions  and  stipulations,  hereinafter 
expressed  and  declared,  as  follows,  viz. : 

FIRST.— Bonds  to  be  issued,  how  and  for  what;  restrictions. 

— The  railway  has  prepared  and  made  ready  for  execution  the 
said  twenty  thousand  bonds  for  one  thousand  dollars  each,  and 
the  railwav  agrees  with  the  trustee,  its  successor  or  successors 

»>          O 

in  this  trust,  that  no  amount  of  bonds  in  excess  of  twenty 
million  dollars  ($20,000,000)  shall  be  issued  under  this  mort- 
gage in  any  event  whatever,  nor  shall  any  bonds  be  issued 
hereunder,  except  to  take  up  said  outstanding  bonds,  now 
liens  as  hereinbefore  stated  upon  the  mortgaged  property,  or 
some  part  thereof,  or  for  the  difference  between  the  present 
average  mortgage  indebtedness  of  the  said  entire  line  and 
branches,  per  mile,  and  twenty  thousand  dollars  per  mile,  or 
except  at  the  rate  of  twenty  thousand  dollars  per  mile  of  com- 
pleted railway  hereafter  to  be  constructed,  purchased  or  ac- 
quired, all  of  which  is  hereinafter  particularly  set  forth. 

1.  It  is  further  agreed  that  said  trustee  shall,  upon  the  exe- 
cution, delivery,  and  recording  of  this  instrument,  hold  and 


NASHVILLE,   CHATTANOOGA   &    ST.   LOUIS    RAILWAY.          613 

retain  in  its  hands  bonds  to  the  amount  of  ten   million  eight 
hundred  and  seven  thousand  dollars  ($10,807,000),  being  the 

asr«rre<rate  amount  of  the  outstanding  bonds  of  the  underlying 

bonds  to  be 
railway  secured   by  the  several  mortgages  herein-  taken  up. 

before  referred  to,  which  bonds  so  outstanding,  and  each  of 
them,  the  railway  agrees  to  take  up  by  exchange,  payment  or 
otherwise,  at  or  before  maturity;  and  it  is  further  agreed  that 
no  other  or  further  bonds  shall  at  any  time  hereafter  be  issued 
under  the  said  mortgages  hereinbefore  described,  under  which 
bonds  are  so  outstanding,  to  the  amount  of  $10,807,000,  or 
under  any  of  them;  and  it  is  further  agreed  that  whenever  any 
owner  or  holder  of  said  bonds,  or  any  of  them,  or  the  said 
railway,  shall  presenta  nd  deliver  to  the  trustee  any  of  the  said 
bonds  now  outstanding  and  unpaid,  and  secured  by  the  mort- 
gages or  deeds  of  trust  hereinabove  mentioned,  with  all 
coupons  not  then  due,  being  liens  upon  the  main  line  or  any  of 
the  branches  or  divisions,  or  any  part  of  the  same,  as  herein- 
above  described,  and  included  in  said  amount  of  $10,807,000, 
the  trustee  shall  receive  the  same  and  deliver,  in  place  thereof 
and  in  exchange  therefor,  bonds  issued  hereunder  and  secured 
hereby,  having  a  par  value  equal  to  the  par  value  of  the  bonds 
so  delivered  to  it,  with  all  coupons  not  then  due. 

All  bonds  secured  by  said  existing  mortgages  or  deeds  of 
trust,  which  shall  be  so  retired  or  replaced  by  payment,  pur- 
chase, exchange  or  otherwise,  by  bonds  provided  to  be  issued 
hereunder,  shall  be  delivered  to  the  trustee,  and  be  by  it  duly 
canceled;  Provided,  however,  Such  trustee  may  hold  underlying 

. .  bond s.  how 

any    bonds   of  any  such  series,    so  delivered    up,  exchanged  for 

new.  dlsposl- 
uncanceled  until  all  the  bonds  of  that  series  shall  tton. 

have  been  retired  or  replaced  as  aforesaid,  or  until,  in  the 
judgment  of  the  trustee,  it  is  no  longer  necessary  so  to  do,  in 
which  case  said  bonds  so  delivered  to  the  trustee,  and  uncan- 
celed  as  aforesaid,  shall  be  held  by  the  trustee  until  canceled, 
as  further  security  to  the  holders  of  the  bonds  issued  herounder 
in  exchange  for  the  same  and  as  collateral  thereto,  and  also 
for  the  benefit  and  the  protection  of  the  railway,  and  there- 
upon the  mortgages  or  deeds  of  trust  given  to  secure  the  pay- 


614          CONSOLIDATED    FIVE    PER    CENT.    GOLD    MORTGAGE. 

ment  of  the  bonds  so  delivered  up  shall  remain  in  full  force 
and  effect,  in  all  respects,  until  the  bonds,  to  secure  the  pay- 
ment of  which  said  mortgages  or  deeds  of  trust  were  originally 
executed,  shall  have  been  fully  canceled,  and  shall  retain  all 
their  priorities,  rights,  benefits,  privileges  and  legal  incidents; 
and  the  trustee  may,  as  the  holder  of  such  uncanceled  bonds, 
enjoy  all  and  singular  the  rights  of  a  bondholder  thereunder. 

But  whenever  all  of  the  bonds  of  any  series,  secured  by  said 
mortgages  or  deeds  of  trust,  shall  have  been  delivered  to  the 
trustee,  it  shall  be  the  duty  of  the  trustee  to  cancel  or  procure 
underlying  ^ne  cancelation  of  the  same,  unless  the  railway  shall 
canceled. **  request  to  have  them  kept  alive  for  the  purpose  of 
perfecting  its  title  to  any  of  the  property  upon 
which  the  same  were  secured,  in  which  event  it  is  agreed  that 

'  O 

the  same  may  be  used  by  the  railway  for  the  purpose  of  per- 
fecting, through  foreclosure  or  otherwise,  its  said  title;  Pro- 
vided, however,  That  the  lien  hereof  is  in  no  event  to  be  dis- 
placed or  in  any  manner  affected  by  any  such  proceedings;  but 
any  and  all  title  that  the  railway  may  acquire  through  or  by 
means  of  any  proceeding  upon  such  mortgages  or  deeds  of 
trust  shall  be  subject  and  subordinate  to  the  lien  of  these 
presents;  and  the  railway  hereby  covenants  and  agrees  that  any 
title  it  may  so  acquire  shall  be  by  it  conveyed  at  once  to  the 
trustee  by  a  proper  deed  of  further  assurance. 

2.  It  is  further  agreed  that,  for  the  purpose  of  affording  the 
railway  the  necessary  means  for  the  betterment  and  improve- 
ment of  the  main  line  and  the  several  hereinbefore  described 
lines  and  branches  as  the  same  and  each  of  the  same  now  exist, 
and  for  the  other  legitimate  purposes  of  the  railway  in  the 
improvement  and  development  of  its  property,  bonds  shall  be 
duly  certified  and  issued  to  the  railway  by  the  trustee,  as  here- 
Amount  of  inaf ter  provided,  for  the  difference,  as  near  as  may 

issued  for  im-    be,    between    sixteen    thousand    six    hundred    and 

provements, 

etc.  twenty  and  seventy-eight  hundredths  dollars  (16.- 

620.78)  per  mile,  the  present  average  mortgage  debt  per  mile 
upon  the  entire  main  line  and  branches,  and  twenty  thousand 
dollars  per  mile;  that  is  to  say,  bonds  to  the  amount  of  three 


NASHVILLE,   CHATTANOOGA  *   ST.   LOUIS    RAILWAY.          615 

thousand  three  hundred  and  seventy-nine  and  twenty-two  hun- 
dredths  dollars  ($3,379.22)  per  mile  upon  such  entire  line  and 
branches,  viz. :  upon  six  hundred  and  fifty  and  twenty-one 
hundredths  miles,  such  entire  mileage,  may  be  so  issued  and 
delivered,  amounting  in  all  to  two  thousand  one  hundred  and 
ninety-seven  (2,197)  bonds,  and  to  the  sum  of  two  million  one 
hundred  and  ninety-seven  thousand  dollars,  of  which  fifteen 
hundred  (1,500)  bonds,  amounting  to  one  million  five  hundred 
thousand  dollars  ($1,500,000),  shall  be  issued  and  delivered  to 
the  railway  at  once,  which  said  amount  of  bonds,  and  all  of 
the  same  and  the  proceeds  thereof,  the  said  railway  hereby 
agrees  shall  be  devoted  and  applied  to  the  betterment,  im- 
provement, or  equipment  of  the  main  line,  branches,  and  prop- 
erty mortgaged  hereby,  or  for  the  change  of  gauge  of  the 
Centreville  Branch  and  of  the  Duck  River  Valley  Narrow 
Gauge  Railroad,  or  for  the  legitimate  purposes  of  the  railway 
in  the  improvement  and  development  of  the  property  hereby 
mortgaged,  and  of  which  amount  further  bonds,  within  the 
limit  hereinabove  fixed,  may  be  issued  when  authorized  by  the 
stockholders,  which,  and  the  proceeds  of  which,  shall  be  de- 
voted to  like  purposes  or  some  of  them. 

3.  It  is  further  agreed  that  whenever  any  additional  mile  or 
miles  of  single  track  railroad  shall  be  built,  acquired,  or  cre- 
ated by  the  railway,  by  purchase,  construction,  consolidation, 
or  otherwise,  evidence  of  which  to  said  trustee  shall  be  the 

affidavit  of  the  president  and  that  of  the  chief  en-  For  purchase 

of  additional 

grineer  of  the  said  railway,  snowing,  among  other  railroads  and 

extensions. 

things,  the  exact  length  of  the  railroad  or  railroads  HOW. 

so  built,  acquired  or  created,  and  where  the  same  begins  and 
ends;  and  in  case  no  lien  by  mortgage  exists  thereon,  and  in 
case  this  instrument  will  become  a  first  lien  thereon,  then  upon 
the  recording  of  this  mortgage  or  deed  of  trust  as  required  by 
the  laws  of  the  State  or  States  in  which  any  part  of  said  addi- 
tional railroad  shall  be  situate,  said  trust  company,  when 
authority  therefor  shall  have  been  obtained  at  any  meeting  of 
the  stockholders,  shall,  upon  the  request  of  the  board  of  direc- 
tors of  the  railway,  certify  and  deliver  to  the  said  railway  a 


616          CONSOLIDATED    FIVE    PER    CENT.   GOLD    MORTGAGE. 

further  issue  of  bonds  hereunder,  at  the  rate  of,  but  in  no  event 
exceeding  the  amount  of  twenty  thousand  dollars  per  mile  for 
each  mile  of  single  track  railroad  so  built,  acquired  or  created, 
exclusive  of  sidings,  but  no  additional  bonds  shall  be  issued  upon 
any  portion  thereof  for  double  track  ;  Provided,  that  if  the  last 
section  of  any  completed  line,  extension  or  branch  shall  be  less 
than  one  mile  in  length,  bonds  shall  be  delivered  to  the  railway 
therefor  at  the  proportionate  rate  of  twenty  thousand  dollars 
for  a  completed  mile. 

It  is  further  agreed  that  if  any  such  additional  mile  or  miles 
of  track  which  shall  so  be  built,  acquired,  or  created,  shall  be 
encumbered  by  any  mortgage,  or  other  lien,  which  remains 
unsatisfied,  so  that  bonds  secured  by  this  mortgage  cannot  be 
New  roads  or  issue(l  upon  each  mile  of  the  same,  or  part  thereof, 
be'ciet'rof to  a^  the  rate  herein  provided,  as  a  first  mortgage  lien, 
incumbrances.  then  the  ]ien  of  thig  jnstrument  s^&\\  not  attach  to 

such  new  road,  branch  or  extension  so  incumbered;  Provided, 
hoivever,  That  when  such  lien  or  encumbrance  be  removed,  so 
this  instrument  can  be  made  a  first  lien  thereon,  then,  on 
recording  the  same  as  hereinbefore  provided,  the  lien  hereof 
shall  attach,  and  bonds  shall  be  issued  thereon  at  the  said  rate 
of  twenty  thousand  dollars  per  mile,  as  hereinabove  is  specifi- 
cally provided. 

SECOND.— Railway  company  to  retain  possession  of  prop- 
erty until  default. — Until  the  railway,  or  its  successors,  shall 
make  default  in  the  payment  of  the  principle  or  interest  of  the 
said  bonds,  or  some  one  of  them,  according  to  the  tenor  thereof, 
or  shall  make  default  or  breach  in  the  performance  or  observ- 
ance of  some  condition,  obligation  or  requirement  by  the  said 
bonds  or  by  this  present  deed  imposed  on  the  railway,  or  its 
successors,  in  reference  to  the  said  bonds,  the  railway,  and  its 
successors,  shall  be  permittted  to  possess,  manage,  operate, 
and  enjoy  the  said  mortgaged  property  with  its  franchises  and 
appurtenances,  as  conveyed  hereby,  and  to  receive,  take,  and 
use  the  income  and  profits  thereof  in  the  same  manner  and 
with  the  same  effect  as  if  this  deed  had  not  been  made. 


NASHVILLE,  CHATTANOOGA    <fe    ST.   LOUIS    RAILWAY.        617 

THIKD.— Trustees  to  release  mortgage  on  certain  property, 

equipments,  etc.,  When. — The  trustee  shall  have  full  power, 
and  it  shall  be  its  duty,  upon  the  written  request  of  the  rail- 
way, to  convey,  by  way  of  release  or  otherwise,  to  the  j)erson 
or  persons,  corporation  or  corporations,  designated  by  the  rail- 
way, any  lands  acquired  or  held  for  the  purposes  of  stations, 
depots,  shops,  or  other  buildings,  and  any  lands  or  other 
property  which  in  the  judgment  of  the  railway  shall  l>e 
unnecessary  for  further  use  in  connection  with  the  said  rail- 
way, or  which  may  have  been  held  for  the  supply  of  fuel, 
gravel,  or  other  material;  and  also  to  convey  as  aforesaid,  on 
like  request,  any  lands  not  occupied  by  the  track,  which  may 
become  disused  by  reason  of  a  change  of  the  location  of  said 
track,  or  of  any  stationhouse,  depot,  shop,  or  other  building 
connected  with  the  said  railway  lines  or  branches,  and  such 
land  occupied  by  the  track  or  tracks  thereof  and  adjacent  to 
such  stationhouse,  depot,  shop,  or  other  building,  as  the  rail- 
way may  deem  it  expedient  to  disuse  or  abandon  by  reason  of 
such  change,  and  to  consent  to  any  such  change,  and  to  such 
other  changes  in  the  location  of  the  track  or  depots,  bridges, 
or  other  buildings  or  structures,  as  in  the  judgment  of  the 
railway  shall  have  become  expedient,  and  to  make  and  deliver 
the  conveyances  necessary  to  carry  the  same  into  effect;  and 
the  trustee  shall  also  have  full  power  to  allow  the  railway  from 
time  to  time  to  dispose  of,  according  to  its  discretion,  such 
portions  of  the  equipment,  machinery,  and  implements  at  any 
time  held"  or  acquired  for  the  use  of  the  railway  as  may  have 
become  unfit  for  such  use,  the  railway  replacing  the  same  by 
new;  and  all  the  property  required  for  replacing,  or  acquired 
in  lieu  of  any  of  the  property  conveyed  under  the  provisions 
of  this  article,  shall  immediately  be  and  become,  without  any 
other  act  of  conveyance  upon  the  part  of  the  railway,  subject 
to  the  operation  and  lien  of  these  presents. 

FOURTH.— Taxes,  who  to  pay;  railway  to  execute  addi- 
tional title  papers,  When. — The  railway  agrees  well  and  truly 
to  pay  and  discharge  all  taxes  lawfully  levied  upon  said  rail- 
road and  branches,  franchises,  and  proj>erty  hereinbefore  de- 


618          CONSOLIDATED    FIVE    PER    CENT.   GOLD    MORTGAGE. 

scribed  and  hereby  mortgaged,  from  time  to  time,  when  the 
same  shall  be  due  respectively,  and  to  keep  the  same  in  good 
order  and  repair  at  its  own  cost,  and  to  do  all  things  necessary 
to  be  done  to  keep  valid  the  lien  hereby  created  upon  the  said 
mortgaged  property,  and  every  part  of  the  same,  and  from 
time  to  time  to  execute  such  other  conveyances  and  to  do  such 
other  acts  and  things  as  may  be  necessary  or  reasonably  re- 
quired to  improve  or  make  perfect  the  lien  acquired  by  this 
instrument. 

FIFTH.  Lien  attaches  to  after-acquired  tracks,  when; 

limitation. — The  lien  of  this  instrument  shall  attach  to  such 
additional  mile  or  miles  of  constructed  track  as  shall  hereafter 
be  built,  acquired,  or  created  by  the  railway  as  shall  be  unen- 
cumbered, and  on  which  bonds  of  this  series  may  be  duly 
authorized  to  be  issued,  as  hereinabove  provided,  and  to  such 
equipment  or  other  property  appurtenant  thereto  as  shall  be 
hereafter  acquired;  but  whenever  such  additional  number  of 
miles  of  railroad  shall  have  been  so  built,  acquired,  or  created, 
and  covered  by  this  instrument,  so  as  to  entitle  the  railway 
(including  the  number  of  bonds  at  the  time  in  the  hands  of  the 
trustee  to  take  up  bonds  secured  by  mortgages  then  outstand- 
ing) to  the  entire  amount  of  bonds  to  be  issued  hereunder,  viz., 
twenty  thousand  bonds  of  one  thousand  dollars  each,  then  no 
further  railroad  extension,  branch,  branches,  or  property,  nor 
any  equipment  properly  belonging  thereto,  shall  be  covered 
hereby. 

1.  Number  of   bonds  issued. — At  this   writing,   only  $6,233,000  of 
bonds,  of  the  $20,000,000  authorized  to  be  issued  under  this  mortgage, 
have  been  issued. 

2.  After-acquired  property. — For  enumeration  of  properties  acquired 
since  the  execution  of  this  mortgage,  see  notes  to  similar  heading  in 
first  part  of  this  mortgage. 

SIXTH.— On  default  trustee  to  take  charge  and  operate, 

hOW. — Whenever  the  railway  or  its  successors  shall  make  de- 
fault in  payment  of  the  coupons  on  any  of  its  bonds  after  due 
presentation  and  demand  thereof,  and  such  default  shall  con- 
tinue for  a  period  of  six  months;  or  shall  make  default  or 
breach  in  the  performance  or  observance  of  any  such  other 


NASHVILLE,   CHATTANOOGA    A    ST.   LOUIS    RAILWAY.         619 

condition,  obligation  or  requirement  mentioned  herein,  and 
such  default  shall  continue  for  the  period  of  six  months,  then, 
and  in  either  of  such  cases,  it  shall  be  lawful  for  the  trustee, 
for  the  time  being,  and  upon  the  written  request  of  the  holders 
of  a  majority  of  the  bonds  outstanding,  such  trustee  shall  enter 
on  and  take  and  possess  all  and  singular  the  railroads,  property 
and  rights  hereby  conveyed,  and  work  and  operate  the  same 
by  its  superintendents,  managers,  receivers,  servants,  attorneys 
or  agents,  and  conduct  the  business  thereof,  and  make,  from 
time  to  time,  such  repairs  and  replacements  and  such  useful 
alterations,  additions  and  improvements  therein  and  thereto  as 
may  seem  to  it  to  be  judicious  or  convenient,  and  collect  or 
receive  all  tolls,  freights,  revenues,  incomes,  rents,  issues  and 
profits  thereof;  and,  after  deducting  and  defraying  the  ex- 
penses of  working  and  operating  the  same,  and  of  all  the  said 
repairs,  replacements,  alterations,  additions  and  improvements, 
and  all  payments  which  may  be  made  for  charges  or  liens  of 
any  kind  prior  to  the  lien  of  these  presents,  and  all  other  ex- 
penses and  outgoings  whatsoever  incurred  in  relation  thereto, 
as  well  as  just  compensation  for  its  own  services  and  for  the 
services  of  such  attorneys  and  counsel,  and  all  other  agents  and 
persons,  as  may  have  been  by  it  employed,  the  trustee  shall 
apply  the  moneys  arising  from  such  collections,  as  aforesaid, 
in  or  toward  the  payment  of  interest  on  all  the  said  bonds  in 
the  order  in  which  the  said  interest  shall  have  become  due, 
ratably,  to  the  persons  entitled  to  such  interest;  and,  after  pay- 
ing all  interest  which  shall  have  become  due,  shall  apply  the 
residue  of  said  moneys  in  or  toward  the  payment  of  the  princi- 
pal of  such  of  the  said  bonds  as  may  be  at  that  time  outstand- 
ing and  unpaid,  ratably,  and  without  discrimination  as  to 
persons.  And  if,  after  satisfaction  thereof,  a  surplus  shall 
remain,  it  shall  pay  over  such  surplus  to  the  railway,  its  suc- 
cessors or  assigns,  or  as  any  court  of  competent  jurisdiction 
shall  order. 

SEVENTH.—  Mortgage  to  be  foreclosed,  when;  all  bonds  fall 

due  on  default,  When.— In  case  the  railway  shall  fail,  for  the 
period  of  six  months,  to  pay  the  coupons  for  the  semi-annual 


620          CONSOLIDATED    FIVE    PER    CENT.   GOLD    MORTGAGE. 

interest  on  any  of  the  bonds  issued  under  and  secured  by  this 
mortgage,  after  due  presentation  and  demand  thereof,  the  prin- 
cipal of  all  of  said  bonds  shall,  at  the  option  of  the  holders  of 
a  majority  in  the  interest  of  said  bonds  then  issued  and  out- 
standing, forthwith  become  due  and  payable,  and  the  trustee 
shall  on  such  option  baing  so  expressed  in  writing  declare  the 
same  to  be  so  due  and  payable,  and  in  such  case  of  default  in 
the  payment  of  interest  for  the  period  of  six  months,  or  in  case 
the  railway  shall  fail  to  pay  any  of  said  bonds  after  maturity, 
according  to  the  tenor  and  effect  thereof,  or  after  they  become 
due  as  hereinabove  provided,  the  lien  hereby  created  for  the 
security  and  payment  of  said  bonds  may  be  at  once  enforced, 
and  the  trustee,  its  successor  or  successors  may,  and  upon  the 
written  request  of  the  holders  of  a  majority  in  interest  of.  said 
bonds  then  outstanding,  and  on  the  receipt  of  satisfactory 
indemnity,  shall,  forthwith,  with  or  without  entry,  as  aforesaid, 
sell  and  dispose  of  all  and  singular  the  premises  and  property 
hereby  conveyed,  or  any  part  thereof,  at  public  auction,  in  the 
city  of  New  York  and  State  of  New  York,  or  in  the  city  of 
Nashville  and  State  of  Tennessee,  in  the  discretion  of  the 
trustee,  at  such  times  as  it  may  appoint,  first  giving  notice  of 
said  sale  and  of  the  time,  place,  and  t3rms  thereof,  by  adver- 
tisement for  the  term  of  four  weeks  in  some  daily  newspaper 
published  in  said  city  of  New  York,  and  also  in  some  daily 
newspaper  published  in  the  said  city  of  Nashville.  The  trustee 
shall  have  power  to  adjourn  said  sale  from  time  to  time,  at  its 
discretion;  and  if  adjourned  to  another  date,  it  may  make  said 
sale  at  the  time  appointed  without  further  notice  by  adver- 
tisement; and  the  trustee  shall  have  power  to  make  and  deliver 
to  the  purchaser,  or  purchasers,  at  said  sale,  good  and  sufficient 
deeds  of  conveyance  of  the  property  sold,  and  the  receipt  of  the 
trustee  shall  be  a  sufficient  discharge  to  the  purchaser,  or  pur- 
chasers, of  the  premises  which  shall  be  sold  as  aforesaid,  for 
his  or  their  purchase  money,  and  such  purchasers  shall  not, 
after  the  payment  of  such  purchase  money,  b3  liable  to  see  to 
its  application  upon  or  to  the  purposes  or  trusts  of  these  pres- 
ents, or  to  be  in  any  manner  answerable  for  any  loss,  misappli- 


NASHVILLE,  CHATTANOOGA    &    ST.   LOUIS    RAILWAY.        621 

cation,  or  non-application  of  such  purchase  money,  or  any  part 
thereof,  or  be  obliged  to  inquire  into  the  necessity  or  expedi- 
ency  of  or  for  any  such  sale;  or  the  trustee  may,  at  its  election, 
institute  and  maintain  foreclosure  proceedings  in  any  court  of 
competent  jurisdiction,  for  the  appointment  of  a  receiver  or  for 
the  sale  of  said  main  line,  branches,  and  mortgaged  property, 
appurtenances,  rights,  privileges,  and  franchises  for  the  pay- 
ment of  said  bonds,  or  such  of  them  as  may  remain  unpaid,  and 
all  unpaid  interest  due  thereon,  and  for  the  distribution  of  the 
proceeds  of  any  such  sale  amongst  the  holders  and  owners  of 
said  bonds  and  coupons,  according  to  their  rights  and  equities, 
respectively;  P/widtd,  That  if  the  railway  at  any  time  before 
such  sale,  and  before  said  bonds  shall  have  become  due  by 
their  terms,  or  by  reason  of  any  declaration  of  the  trustee,  as 
hereinabove  provided  for,  shall  pay  all  the  interest  then  matured 
thereon,  or  due  thereon,  and  all  unpaid  taxes,  if  any,  compen- 
sation of  the  trustee,  costs  of  the  proceedings  in  court  and  all 
legal  and  proper  charges  in  favor  of  the  trustee,  its  agents  or 
attorneys,  a  sale  on  account  of  such  previous  failure  shall  not 
be  made,  and  said  proceedings  for  a  sale,  or  said  foreclosure 
proceedings,  shall  be  dismissed. 

EIGHTH.  Bondholders  may  purchase  at  sale.— it  is  hereby 

further  understood  and  agreed  that  it  shall  be  lawful  for  the 
landholders  so  demanding  such  sale,  or  a  majority  of  them, 
and  all  holders  of  bonds  secured  hereby  who  may  unite  with 
them,  to  purchase,  at  any  such  sale,  said  roads,  branches,  and 
other  property,  appurtenances,  rights,  franchises,  and  privi- 
leges, but  the  cost  of  the  foreclosure  proceedings,  compensation 
of  the  trustee,  attorney's  fees,  and  all  other  proper  costs  and 
charges  are  first  to  be  paid  out  of  the  proceeds  of  the  sale,  and 
the  remainder  of  said  proceeds  shall  l>e  applied  in  payment  of 
the  unpaid  interest  and  principal  of  the  said  several  bonds, 
ratably,  but  without  any  preference  of  principal  over  interest 
or  of  interest  over  principal,  and  without  discrimination  as  to 
persons;  and  if,  after  paying  in  full  said  bonds  and  interest, 
there  shall  be  any  money  remaining  in  the  hands  of  the  trustee, 


622          CONSOLIDATED    FIVE    PER    CENT.   GOLD    MORTGAGE. 

it  shall  pay  the  same  to  the  railway,  its  successors  or  assigns, 
or  as  may  be  ordered  by  any  court  having  jurisdiction.  In 
the  event  of  such  purchase  by  such  bondholders,  and  after  the 
payment,  out  of  the  proceeds  of  sale,  of  said  costs,  compensa- 
tion of  trustee,  and  fees  of  attorneys,  they  shall  be  allowed 
credit,  as  so  much  cash  paid,  for  so  much  of  said  purchase 
money  as  shall  be  a  proper  pro  rata  share  to  which  the  bonds 
and  coupons  held  by  such  purchasers  shall  be  entitled. 

NINTH.— in  case  of  foreclosure,  railway  waives  certain 

rights. — It  is  agreed  that,  in  case  of  any  default  in  the  pay- 
ment of  said  bonds  secured  hereby,  or  of  any  interest  thereon, 
or  in  the  observance  of  any  of  the  covenants,  conditions,  pro- 
visions, or  agreements  herein  contained,  on  account  of  which  a 
sale  by  foreclosure,  or  otherwise,  could  be  made,  the  railway 
will  waive,  and  hereby  waives,  the  benefit  of  any  stay,  ap- 
praisement, and  redemption  laws,  or  of  any  laws  regulating 
sales  under  mortgage  foreclosures  in  the  States  of  Tennessee, 
Kentucky,  Alabama,  or  Georgia,  now  existing  or  which  may 
hereafter  exist. 

TENTH.  -Mortgage  becomes  void  and  lien  released,  when.— 

It  is  further  agreed,  that  upon  the  payment  by  the  railway,  at 
any  time  when  due,  of  the  said  bonds  issued  under  and  secured 
by  this  mortgage  or  deed  of  trust,  and  of  all  interest  matured 
or  due  thereon,  before  a  foreclosure  sale,  as  hereinbefore  pro- 
vided, and  the  compensation  and  expenses  of  the  trustee,  and 
other  proper  charges,  this  deed  shall  become  void,  and  the 
estate  and  title  hereby  granted  shall  revert  to  and  vest  in  the 
company,  its  successors  and  assigns,  without  other  conveyance 
thereof. 

ELEVENTH.— Majority  bondholders,  rights  of,  trustee.— 

The  action  of  the  trustee  herein  in  regard  to  enforcing  to  any 
extent  the  lien  created  by  this  mortgage  or  deed  of  trust,  either 
by  taking  possession,  or  by  sale  at  auction,  or  by  resort  to 
judicial  proceedings,  or  otherwise,  or  in  declaring  the  principal 
of  the  bonds  to  be  due,  or  in  reversing  such  declaration,  or 
otherwise,  shall  be  at  all  times  subject  to  the  control  of  a 


NASHVILLE,    CHATTANOOGA    A    ST.    LOUIS    RAILWAY.         623 

majority  in  amount  of  the  holders  of  said  bonds,  then  issued 
and  outstanding,  their  wishes  being  expressed  in  writing  to 
the  trustee,  whose  action  shall  l>e  at  all  times  subject  to  the 
control  of  a  majority  in  amount  of  the  holders  of  said  bonds, 
as  herein  provided.  The  trustee  shall  be  under  no  obligation 
to  recognize  any  person,  firm  or  corporation,  as  a  holder  of 
bonds  secured  hereby,  or  entitled  to  the  benefits  hereof,  who 
shall  not  produce  the  said  bonds,  or  otherwise  satisfy  the  trustee 
that  he  is  the  holder  thereof,  and  indemnify  and  save  harmless 
the  trustee  for  all  liability  and  loss  for  which  it  may  become 
liable  or  responsible  on  proceeding  to  carry  out  such  request 
or  demand. 

TWELFTH.— Trustee  may  resign  or  be  removed,  how;  suc- 
cessor, hOW  Chosen. — It  is  further  agreed  that  the  trustee 
hereby  accepts  the  aforesaid  trusts  and  agrees  to  execute  the 
same,  upon  the  following  terms  and  conditions,  which  are 
mutually  agreed  to  by  the  parties,  viz. : 

The  trustee,  its  successor  and  successors,  may  resign  or 
discharge  itself,  or  themselves,  of  the  trusts  created  by 
these  presents,  by  notice  to  the  railway  in  writing,  three 
months  before  such  resignation  shall  take  effect,  but  such 
resignation  may  take  effect  after  shorter  notice,  if  the  holders 
of  a  majority  of  the  bonds  then  outstanding,  so  consent;  that 
the  trustee  shall  be  answerable  for  gross  negligence  and  willful 
defaults  only;  that  the  trustee  may  employ  or  advise  with  legal 
counsel,  and  that  the  proper  expenses  thereof  and  all  personal 
expenses  of  the  trustee,  including  its  compensation,  shall  be 
paid  by  the  company  as  they  are  incurred,  or  otherwise,  out 
of  the  trust  estate  on  which  they  are  hereby  charged;  and  it 
may  employ  agents  or  attorneys  in  fact,  to  act  for  it,  when- 
ever required  to  act. 

The  trustee  may  be  removed  by  a  vote  of  a  majority  in 
interest  of  the  holders  of  the  bonds  secured  hereby,  issued  and 
outstanding  at  the  time  of  said  vote,  the  said  vote  to  be  taken 
at  a  meeting:  of  the  bondholders,  and  attested  bv  an  instrument 

v 

duly  executed  by  all  of  the  persons  so  voting  at  such  meeting, 


624          CONSOLIDATED    FIVE    PER    CENT.   GOLD    MORTGAGE. 

for  such  removal,  and  the  rights  of  such  persons  so  to  vote  at 
such  meeting  being  proven  by  the  affidavit  of  the  chairman  and 
secretary  of  said  meeting;  or  the  trustee  may  be  removed  by 
an  instrument  or  instruments  in  writing,  signed  by  the  holders 
of  a  majority  in  interest  of  said  bonds,  such  instrument  being 
duly  acknowledged  and  accompanied  by  the  affidavit  of  the 
respective  signers  thereof,  and  naming  the  number  of  bonds  of 
which  they  are  respectively  the  holders. 

And  it  is  further  agreed  that,  in  the  event  of  a  vacancy  in 
the  trust,  or  of  the  disability  or  failure  of  the  trustee,  its  suc- 
cessor or  successors,  for  any  cause,  to  act  as  such  trustee,  the 
owners  and  holders  of  a  majority  of  the  bonds  secured  hereby, 
then  issued  and  outstanding,  may,  by  an  instrument  in  writ- 
ing, duly  executed  by  them  respectively  (which  instrument 
shall  be  recorded  in  the  offices  in  which  this  mortgage  is  re- 
quired by  law  to  be  recorded),  appoint  some  competent  succes- 
sor or  successors  to  said  trustee;  and,  in  the  event  of  their 
failure  or  refusal  to  do  so,  it  shall  be  lawful  for  the  circuit 
court  of  the  United  States,  sitting  in  any  district  in  the  State 
of  Tennessee,  having  jurisdiction,  after  notice  being  given  by 
publication,  twice  a  week  for  four  successive  weeks,  in  some 
newspaper  published  in  the  city  of  New  York  and  in  some 
newspaper  published  in  the  city  of  Nashville,  of  an  intention  to 
apply  for  such  appointment,  to  appoint  such  successor  on  the 
nomination  of  holders  of  not  less  than  one-fourth  of  the  bonds 
secured  hereby,  or,  in  the  event  of  their  failure  to  nominate, 
then  on  the  nomination  of  the  railway,  and  the  successor  or 
successors,  in  either  such  manner  appointed,  shall  possess  all 
the  powers  and  incur  all  the  obligations  of  the  said  trustee 
herein  named;  and,  in  case  of  such  appointment,  the  railway 
covenants  to  make  all  such  deeds  and  other  instruments  as  shall 
be  necessary  to  enable  the  party  so  appointed  to  execute  the 
trusts  hereby  created  as  fully  and  completely  as  if  such  ap- 
pointed party  had  been  originally  the  trustee. 

In  witness  whereof,  the  parties  hereto  have  caused  their 
respective  corporate  seals  to  be  hereunto  affixed  and  the  same 


NASHVILLE,    CHATTANOOGA    <fe    ST.    LOUIS    RAILWAY.         625 

to  bo  subscribed  by  their  respective  presidents  and  secretaries, 
the  day  and  year  first  above  written. 

THE  NASHVILLE,  CHATTANOOGA  &  ST.  Louis  RAILWAY, 
[SEAL.]  By  J.  W.  THOMAS,  President. 

Attest:  J.  H.  AMBROSE,  Secretary. 
UNITED  STATES  TRUST  COMPANY  OF  NEW  YORK,  Trustee, 
[SEAL.]  By  JOHN  A.  STEWART,  President. 

Attest:  H.  L.  THORNELL,  Secretary. 

1.  Mortgage,  where  registered. — The  foregoing  mortgage  was  prop- 
erly acknowledged,  and  registered  in  the  following  counties  and  states: 

In  Tennessee. — Davidson  county,  April  14,  1888,  in  book  111,  p.  379; 
Wilson  county,  book  "88,"  p.  346;  Cheatham  county,  book  2,  p.  436; 
Lt-wis  county,  book  2,  p.  218;  Bledsoe  county,  book  "V,"  p.  2;  Wayne 
county,  book  2,  p.  8;  Obion  county,  book  "  R,"  No.  2,  p.  519;  Weakley 
county,  trust  book  "O,"  p.  395;  Carroll  county,  mortgage  book  "  K."  p. 
500;  Bedford  county,  trust  deed  book  5,  p.  455;  Grundy  county,  trust  book 

2,  p. ,  noted  in  book  1,  p.  30;  White  county,  book  28,  p.  435;  Se- 

quatchie  county,  book  "A,"  p.  364;  Benton  county,  book  "0  C,"  p.  561; 
Humphreys  county,  book  "D,"  p.  358:  Hickman  county,  book  3,  p.  523; 
Dickson  county,  book  "  U,"  p.  92;  Rutherford  county,  book  "D  D,"  p. 
517;  Franklin  county,  trust  book  4,  p.  49;  Coffee  county,  book  4,  p.  2; 
Warren  county,  trust  book  1,  p.  479;  Lincoln  county  trust  book  8,  p.  279; 
Marion  county,  book  "R,"  p.  193;  Maury  county,  book  "  R,"vol.  3,  p.  36; 
Marshall  county,  trust  book  '"D,"  p.  324;  Hamilton  county,  book  "J," 
vol,  3,  p.  ;  Moore  county,  book  of  mortgages,  No.  4,  p.  30. 

In  Kentucky. — Fulton  county,  in  book  No.  6  of  mortgages,  on  April 
18,  1888. 

In  Alabama. — Etowah  county,  mortgage  record  50,  p.  1,  also  in  book 
50,  p.  10;  Marshall  county,  deed  record,  No.  5,  p.  523,  also  in  book  7,  p. 
7;  Madison  county,  mortgage  book  28,  p.  500,  also  in  book  62,  p.  65; 
Jackson  county,  in  mortgage  record  19,  p.  3,  also  in  book  35,  p.  235; 
Limestone  county,  vol.  29  of  mortgages,  p.  35;  also  in  book  61,  p.  40. 

In  Georgia. — Dade  county,  deed  book  "J,"  p.  237  of  superior  court, 
also  in  book  "M,"  p.  516;  Floyd  county,  book  "  K-L  "  of  mortgages,  p. 
301,  also  in  book  "  P-l,"  p.  56;  Bartow  county,  book  "  M  "  of  mortgages, 
p.  281.  also  in  book  "  N,"  p.  489. 

2.  Other  mortgages  (branch). — The  foregoing  mortgage  is  the  only 
one  covering  the  entire  sy&teoi  of  the  Nashville  Chattanooga  &  St.  Louis 
Railway.     Additional    mortgages    exist    on    many    of    the    individual 
branches,  as  for  instance  the  Sparta  Branch,  Lebanon  Branch,  etc.,  but 
as  these  are  referred  to  in  the  foregoing  mortgage,  showing  the  amounts 
thereof,  a  further  reference  is  deemed  unnecessary.     The  bonds  secured 
by  these  mortgages  will  be  taken  up  when  due  under  the  provisions  of 
the  foregoing  one. 

3.  Same;  Western  &  Atlantic  income  bonds.— After  the  lease  of  the 

40 


626          CONSOLIDATED    FIVE    PER   CENT.   GOLD    MORTGAGE. 

Western  «fe  Atlantic  Railroad  from  the  State  of  Georgia,  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  mortgaged  its  entire  leasehold  interest 
in  said  road,  properties,  etc.,  together  with  8500,000  of  bonds  of  the 
State  of  Georgia,  deposited  with  the  treasurer  of  said  state  in  com- 
pliance with  the  terms  of  the  lease  act,  to  secure  an  issue  of  §650,000  of 
bonds  known  as  its  "  Western  &  Atlantic  Railroad  income  bonds,"  given 
to  reimburse  itself  for  that  amount  of  money  expended  by  it  in  the  re- 
newal and  repair  of  the  bridges,  trestles,  tracks,  depots,  etc.,  on  that 
road. 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RY.  ''>'-' 7 


PART  II. 

GENERAL  POWERS  OF  N.,  C  &  ST.  L.  RY.  IN  TENNESSEE, 
ALABAMA,  GEORGIA,  AND  KENTUCKY. 


Since  the  passage  of  the  original  acts  incorporating  the  Nashville, 
Chattanooga  A  St.  Louis  Railway,  and  the  various  branches  forming 
its  present  system,  many  acts  of  the  several  states  through  which  the 
roads  pass  have  been  enacted,  considerably  enlarging  these  powers. 
Amendments  to  the  original  charters  have  been  made,  as  well  as  numer- 
ous general  laws  enacted,  which  enlarge  the  powers  already  conferred. 

In  the  succeeding  pages  will  be  found,  in  alphabetical  order,  the  gen- 
eral powers  of  the  corporation  in  the  respective  states  as  now  possessed. 


CHAPTER  L. 

ABANDONMENT—  BILLS,  NOTES,  ETC.  —ACKNOWLEDGMENT— 
AGREEMENT— ALTER  OAUOE. 

Abandonment.— [See  Charter,  forfeiture  of.] 

Accept,  bills,  notes,  etc. — Railways  are  created  for  special 
purj>oses,  and  may  resort  to  any  legitimate  means  necessary 
and  proper  to  carry  out  those  purposes,  unless  prohibited  by 
its  charter  or  the  general  law.  Hence,  it  may  contract  debts 
within  the  scope  of  its  powers,  and  may  make  provisions  for 
their  payment  by  drawing,  indorsing  or  accepting  bills  and 
notes.  6  Hum.  (Tenn.),  516;  9  Hum.  (Tenn.),  26-t;  11  Hum. 
(Tenn.),  22;  2  Cold.  (Tenn.),  655;  2  Swan  (Tenn.),  371;  7 
Heis.  (Tenn.),  288;  9  Heis.  (Tenn.),  524,  533,  Thompson  on 
Corp.  §3989. 

It  is  unnecessary  to  set  out  the  laws  of  Alabama,  Georgia,  and  Ken- 
tucky as  to  the  above,  inasmuch  as  the  Nashville,  Chattanooga  &  8k 
Louis  Railway  is  a  corporation  of  Tennessee  only,  and  its  actions  in  this 
regard  must  be  controlled  entirely  by  the  Tennessee  law. 


628      BILLS,   ETC.,   ACKNOWLEDGMENT,   AGREEMENT,   GAUGE. 

Acknowledgment.  [In  Tennessee].  By  Acts  Tennessee, 
1899,  p.  364,  ch.  187,  the  authentication  or  acknowledgment 
for  record  of  a  deed  or  other  instrument  executed  by  a  corpor- 
ation, whether  it  has  a  seal  or  not,  was  made  good  and  suf- 
ficient when  made  substantially  in  the  following  form  : 

1 '  STATE  OF  -       — ,  [ 
COUNTY  OF  -       — .  j 

"  Before  me  -  — ,  the  state  and  county  aforesaid,  person- 
ally appeared  -  — ,  with  whom  I  am  personally  acquainted, 
and  who,  upon  oath,  acknowledged  himself  to  be  the  president 
(or  other  officer  authorized  to  execute  the  instrument)  of  the 
— ,  the  within  named  bargainer,  a  corporation,  and  that 
he,  as  such  -  — ,  being  authorized  so  to  do,  executed  the 
foregoing  instrument  for  the  purpose  therein  contained,  by 
signing  the  name  of  the  corporation  by  himself  as  —  — . 

"  Witness  my  hand  and  seal,  at  office,  in  -        — ,  thig  - 
day  of  -        -." 

[In  Alabama.]  By  §  996  of  the  code  of  Alabama  (1896) 
the  following  is  the  form  of  acknowledgment  to  be  used  in  the 
state  on  conveyances  of  every  description  admitted  to  record: 

1 '  THE  STATE  OF  - 
COUNTY . 


"  I  (name  and  style  of  the  officer),  hereby  certify  that , 

whose  name  is  signed  to  the  foregoing  conveyance,  and  who  is 
known  to  me,  acknowledged  before  me  on  this  day  that,  being 
informed  of  the  contents  of  the  conveyance,  he  executed  the 
same  voluntarily  on  the  day  the  same  bears  date.  Given  under 

my  hand,  this day  of  -    — ,  A.D.  -    — . 

"A.  B.,  Judge,"  etc.  (or  as  the  case  may  be). 
[In  Georgia.]     [See  form  on  p.  396-397  herein.] 
[In  Kentucky.]     [See  code  Ky.  (1894),  §  501,  et  seq.} 
Agreements. — [See  also  "Contracts."]     "All  contracts  and 
agreements  authenticated  by  the  president  of  the  board  shall  be 
binding  on  the  company  without  seal,  or  such  other  mode  of 
authentication  may  be  used  as  the  company  by  its  by-laws  may 
adopt."     Nashville,   Chattanooga  &  St.  Louis  Railway  Char- 
ter, §11,  p.  8  herein. 


GENERAL    POWERS    OF   THE    N. ,    C.    A    ST.    L.    RY.  629 

Deed*  to  real  estate,  etc.,  however,  were  required  at  common 
law  to  be  under  seal,  and  neither  the  above  section  of  the 
charter,  nor  §2478  of  the  code  of  Tenn.  (M.  &  V.),  changes 
this  law  as  to  such  conveyances.  In  all  such  cases  the  seal  of 
the  company  should  be  attached  to  make  it  valid.  10  Pick. 
(Tenn.),  460;  [see  also  "Contracts."] 

Alter  gauge. — [In  Tennessee.]  There  are  no  charter  pro- 
visions of  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  or 
amendments,  on  this  subject,  but,  under  the  general  laws,  all 
railroads,  whether  chartered  under  special  or  general  act,  are 
allowed  to  adopt  such  gauge  or  gauges  as  they  like,  and  to 
alter  the  same  at  pleasure.  Acts  Tenn.  1885,  ch.  20,  p.  67; 
code  Tenn.  (Shannon's),  §  2414. 

The  branches  of  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  that  were  chartered  under  the  general  acts  of  1875 
all  have  a  clause  on  this  subject.  See  sec.  34,  p.  421  herein. 


630  BONDS,    BORROW    MONEY. 


CHAPTER   LI. 

BONDS— BORROW  MONEY. 

[See,  also,  Mortgages.] 

[in  Tennessee.]    When  and  how  bonds  may  be  issued  and 

Subscribed  for.  May  borrow  money.— There  are  no  provis- 
ions in  the  charter,  or  amendments  thereto,  upon  this  subject,  but 
it  is  a  well  established  principle  of  law  that,  in  the  absence  of 
statute  to  the  contrary,  a  corporation  may  borrow  money  for 
any  lawful  purpose  and  issue  negotiable  bonds  as  security 
therefor.  77  N.  C.,  289;  75  Am.  Dec.,  574;  Thompson  on 
Corp.,  sees.  6050,  3988;  code  Term.  (M.  &  V.),  §§  1251,  1701. 

It  cannot  issue  bonds,  however,  secured  by  mortgage,  which 
are  never  to  mature.  II). 

If  the  company  has  power  to  issue  bonds,  they  will  be  valid, 
although  the  mortgage  given  to  secure  them  may  be  void  for 
want  of  authority  in  the  company  to  execute  the  same,  etc. 
The  mortgage  is  merely  collateral  to  the  principal  undertaking — 
is  but  an  additional  security  for  it,  and  its  invalidity  cannot,  of 
course,  affect  the  primary  obligation  to  pay  the  debt.  75  Am. 
Dec.,  574;  Thompson  on  Corp.,  sec.  6062. 

Railways  may  issue  by  Statute.— Under  the  general  laws 
of  the  State  of  Tennessee,  railways  have  the  power  to  borrow 
money  and  to  issue  bonds  therefor,  or  for  any  other  indebted- 
ness or  liability  which  they  may  incur,  or  may  have  incurred, 
in  the  exercise  of  their  lawful  purposes,  and  to  secure  the  pay- 
ment of  such  bonds,  with  the  interest  thereon,  by  a  mortgage 
of  the  whole  or  any  part  of  its  railroad  and  equipments  and 
other  property  and  franchises,  containing  such  provisions  as 
their  directors  shall  approve.  Code  Tenn.  (M.  &  V.),  §  1251; 
acts  Tenn.  1871,  ch.  69;  Shannon's  code,  §1510. 

The  above  act  supersedes  the  acts  of  Tenn.  1871,  ch.  22;  but  see  act 
itself. 

How  and  when  bonds  may  be  issued.— Any  railroad  com- 


GENERAL    POWERS    OF   THE    N. ,    C.    A    ST.    L.    RV.  631 

pany  in  this  state  may  issue  bonds  in  such  amounts,  and  bear- 
ing such  rate  of  interest,  not  exceeding  the  legal  rate  of 
interest  at  the  place  where  payable,  as  may  be  determined  on 
by  stockholders  representing  a  majority  of  all  the  stock  in  the 
company,  and  may  secure  the  payment  of  such  bonds,  princi- 
pal and  interest,  by  mortgage  of  the  franchises,  roadl>ed, 
superstructure,  equipments,  and  property  of  every  description 
of  such  railroad  company.  The  mortgage  above  authorized 
shall  not  interfere  with  prior  liens,  especially  the  liens  of  the 
state  in  the  existing  mortgages  in  favor  of  the  state.  Code 
Tenn.  (M.  &  V.),  §1276;  Acts  Tenn.  1870-71,  ch.  116,  §1; 
(Shannon's  Code  Tenn.,  jj  1511.) 

Same.  May  also  issue  income  and  debenture  bonds.— Rail- 
road companies  existing  under  the  laws  of  this  state,  or  of  this 
state  and  any  other  state  or  states,  whose  original  charter  of 
incorporation  was  granted  by  this  state,  are  empowered  to 
issue  bonds,  and  secure  the  payment  thereof  by  mortgage 
upon  their  franchises  and  property  in  any  state,  or  upon  any 
part  of  such  franchises  and  property,  or  to  issue  income  or 
debenture  bonds,  and  such  guaranteed,  preferred,  and  common 
stock  as  may  }ye  determined  upon  by  the  stockholders;  Pro- 
vided, The  same  be  approved  by  the  votes  of  the  holders  of 
three-fourths  in  amount  of  the  entire  stock  of  said  company  at 
a  regular  or  called  meeting  of  the  stockholders  of  said  com- 
pany, and  that  sixty  days'  notice  be  given  in  a  Memphis, 
Knoxville,  and  Nashville  daily  newspaper,  of  the  time,  place, 
and  purpose  of  the  meeting.  Code  Tenn.  (M.  &  V.),  §  1277; 
Acts  Tenn.,  1881,  ch.  9;  code  (S.),  1542. 

The  supreme  court  has  decided  that  this  act  did  not  repeal  the  special 
limitations  imposed  by  acts  1877,  ch.  72,  upon  power  of  consolidated 
railwaj-  companies  to  make  mortgages.  4  Pick.  (Tenn. ),  140;  see  Acts 
Tenn.,  1873,  ch.  8,  sec.  3-5. 

Same.    May  issue  to  pay  for  acquired  lines,  or  guarantee 

bonds  Of  lines  SO  acquired. —  "Any  and  all  railroad  companies 
now  or  hereafter  existing  under  the  laws  of  this  state,  or  of 
this  state  and  any  other  state  or  states,  whose  charter  of  incor- 
poration was  or  may  be  granted  by  this  state,  l>e,  and  they  are 


632  BONDS,    BORROW    MONEY. 

hereby,  authorized  and  empowered  to  acquire  the  line  or  lines 
of  any  other  railroad  company,  either  in  this  state  or  in  any 
other  state  or  states,  which  may  connect  with  and  form  parts 
and  parcels,  or  branches  or  extensions,  of  the  line  of  such 
company  chartered  by  this  state,  or  by  this  state  and  any  other 
state  or  states;  and  are  authorized  and  empowered  to  so 
acquire  such  branches  or  extensions  by  purchase,  lease,  or 
otherwise,  and  pay  for  the  same  by  the  issue  of  their  own  cap- 
ital and  bonds,  or  by  guaranteeing  those  issued  by  the  com- 
pany whose  line  may  be  so  acquired,  purchased,  or  leased; 
Provided,  however,  That  nothing  in  this  act  shall  be  construed 
so  as  to  authorize  the  acquisition  in  any  way  by  any  corpora- 
tion or  company  of  parallel  or  competing  lines."  Acts  Tenn. 
1891,  ch.  125,  p.  271. 

Guaranteeing  bonds  of  other  roads  (continued).— All  rail- 
road companies  of  this  state,  and  any  other  state  or  states,  are 
authorized  and  empowered  to  ...  and  to  indorse  and  guar- 
antee the  bonds  of  any  railroad  company  or  companies  in  any 
state  or  states,  whose  original  charter  of  incorporation  was 
granted  by  the  State  of  Tennessee;  Provided,  That  the  same 
be  approved  by  the  vote  of  three-fourths  in  amount  of  the 
capital  stock  of  said  company  present  and  voting,  either  in 
person  or  by  written  proxy,  at  a  regular  or  called  meeting 
of  the  stockholders  of  said  company;  And  provided  further, 
That  sixty  days'  notice  be  given  in  a  Memphis,  Knoxville,  and 
Nashville  daily  newspaper  of  the  time,  place,  and  purpose  of 
the  meeting.  Code  Tenn.  (M.  &  V.),  §  1275;  Shannon's  code, 
§  1540;  Acts  Tenn.,  1881,  ch.  9,  sec.  2;  Acts  Tenn.,  1891,  ch. 
61,  p.  146.  See  4  Pickle  (Tenn.),  140. 

Railroad  terminal  companies. — By  sec.  39  of  the  charter  of  railroad 
terminal  companies,  railroad  companies  were  authorized  to  guarantee 
their  bonds.  See  p.  564  herein. 

May  subscribe  for  bonds  in  other  roads.— Any  railroad 

company  created  by  and  existing  under  the  laws  of  this  state, 
and  any  lessees  of  a  railroad  of  such  company,  from  time  to 
time,  may  subscribe  for  or  purchase  the  stock  and  bonds,  or 
either,  of  any  other  railroad  company  or  companies  chartered 


(-KNERAL    POWERS    OF    THE    X.,    C.    <fe    ST.     L.     RY.  633 

by  or  of  which  the  road  or  roads  is  or  are  authorized  to  ex- 
tend into  this  state,  when  their  roads  shall  be  directly,  or  by 
means  of  intervening  railroads,  connected  with  each  other. 
.  .  .  Code  Tenn.  (M.  &  V.),  £1262;  Shannon's  code, 
?•  i:..'0),  Acts  Tenn.,  1869-70,  ch.  49,  sec.  4. 

May  issue  bonds,  generally. — In  addition  to  the  foregoing 
art-  it  may  be  mentioned  that  under  the  general  law  all  cor- 
porations for  profit  have  the  right  to  borrow  money  and  issue 
notes  or  bonds  upon  the  faith  of  the  corporate  property.  Code 
Tenn.  (M.  &  V.),  §  1704,  sub.  §  7;  Shannon's  code,  §  2054, 
sub.  §  7. 

Power  of  railway  to  sell  bonds  at  discount.— in  the  ab- 
sence of  restraining  statute  existing  corporations  have  the 
power  to  sell  their  bonds  at  less  than  their  par  value  to  pay 
debts  and  carry  on  its  business.  Thorn  p.  on  Corp.',  sec.  6056; 
139  U.  S.,  417  [35,  229];  123  X.  Y.,  91. 

Power  of  railway  to  pledge  its  own  bonds.— All  corpora- 
tions which  have  the  power  to  issue  bonds  secured  by  mort- 
gage may,  doubtless,  transfer  the  bonds  and  mortgage  as  col- 
lateral security  for  an  indebtedness,  even  of  a  less  value  than 
the  sum  for  which  the  bonds  are  issued,  and  which  is  secured 
by  the  mortgage.  64  Ala.,  567:  84  N.  Y.,  190;  96  Ala., 
238;  Thomp.  on  Corp.,  sec.  6061;  11  Pick.  (Tenn.),  136. 

Coupons. — All  coupons  when  severed  from  the  bonds  are 
negotiable,  and  pass  by  delivery.  20  Wall.  (U.  S.),  583,  589. 

Interest  on  coupons  runs  from  date  of  demand  and  re- 
fusal.— Thomp.  on  Corp.,  sec.  6113. 

Bond,  dividends.— See  87  Tenn.,  406;  see  also  "  Dividends" 
herein. 

Innocent  purchaser  Of  COUpOns.— The  holder  of  negotiable 
coupons,  who  acquires  them  after  maturity  as  collateral  se- 
curity for  a  pre-existing  debt,  takes  them  subject  to  all  equi- 
ties available  against  the  party  from  whom  he  obtained  them. 
10  Pick.  (Tenn.),  176. 

When  barred. — The  statute  of  limitations  commences  to  run 
against  actions  upon  coupons  when  they  have  been  detached 
from  the  bonds,  and  transferred  to  parties  other  than  the 


634:  BONDS,    BORROW    MONEY. 

holders  of  the  bonds,  from  the  maturity  of  the  coupons   re- 
spectively.    20  Wall.,  (U.S.)-583;  Thompson  on  Corp.,  §6115. 

Coupons  share  pro  rata  in  mortgage  foreclosure,  excep- 
tions.— "An  interest  coupon  payable  to  bearer,  detached  from 
the  bond,  and  owned  by  one  party,  is  still  a  part  of  the 
mortgage  indebtedness,  and  is  secured  by  the  lien  of  the  mort- 
gage, although  the  bond  itself  may  be  owned  by  another  party. 
An  assignment  of  the  coupon  carries  with  it,  in  equity,  an 
assignment  of  that  aliquot  portion  of  the  mortgage  security 
which  is  represented  by  the  coupon,  and  the  holder  of  the 
coupon  will  be  entitled  to  share  pro  rata  with  the  holders  of  the 
residue  of  the  mortgage  debt,  in  the  distribution  of  the  pro- 
ceeds of  a  sale  foreclosing  the  mortgage."  40  Vt.  399;  s.c.  94 
Am.  Dec.  413;  109  Mass.  88,  96; 

"  Where  in  such  a  case  a  third  person,  with  his  own  money, 
takes  up  maturing  coupons  without  the  knowledge  of  the 
holders,  it  is  a  question  of  fact,  to  be  determined  upon  the 
evidence,  whether  it  is  intended  to  be  a  payment  or  a  purchase 
which  leaves  the  coupons  outstanding  for  his  protection,  so  far 
as  they  will  protect  him  under  the  principles  already  stated. 
96  U.S.  659;  128  U.S.  416: 

"Where  the  promoter  of  a  corporation,  who  owned  nearly  all 
its  shares,  had  placed  a  mortgage  upon  it  to  secure  its  negoti- 
able bonds,  and  in  order  to  preserve  the  credit  of  the  company 
and  avert  disaster  while  its  works  were  being  constructed,  gave 
notice  that  coupons  might  be  presented  for  payment,  and  paid 
them  as  they  were  presented,  and  canceled  part  of  them,  and 
afterwards  turned  them  over,  partly  canceled,  to  contractors 
who  had  advanced  material  in  the  construction  of  the  works  of 
the  corporation,  and  the  mortgage  was  afterwards  foreclosed, 
and  a  question  arose  as  to  the  right  of  the  contractors,  as  in- 
tervening petitioners,  to  share  in  the  proceeds  of  the  sale,  it 
was  held  that,  after  the  promoter  of  the  corporation  had  em- 
ployed his  own  funds  in  the  ostensible  payment  of  the  coupons 
which  he  had  turned  over  to  these  contractors,  thereby  keeping 
up  the  credit  of  the  bonds  and  enabling  them  to  be  floated  and 
marketed,  it  would  be  inequitable  to  allow  him  to  share  pari 


GENERAL    POWERS   OF   THE    N. ,    C.    A   ST.    L.    RY. 

passu  with  the  holders  of  the  other  bonds  and  eou|x>ns  in  the 
same  series  in  the  distribution;  and  that  as  he  had  transferred 
the  coupons  to  the  contractors  after  they  were  past  due,  they 
did  not  receive  them  subject  to  any  protection  which  attaches 
to  the  assignee  of  commercial  paper  before  maturity. "  Thomp- 
son on  Corp.  §6117,  citing  128  U.S.  416;  99  U.S., 235. 

See  10  Pick.  (Tenn.)  176,  as  to  who  are  innocent  purchasers  of  coupons. 

Rate  Of  interest  On  bonds.— The  rate  of  interest  on  bonds, 
lawful  where  made  payable,  are  not  usurious  on  their  face, 
though  interest  lie  in  excess  of  thnt  allowed  in  this  state.  87 
Tenn.,  781. 

Counties,  towns,  etc-,  may  subscribe  for  stock,  bonds,  etc., 

in  railroads,  hOW.— For  method  see  Shannon's  Code  Tenn., 
§154:2  «,  et  se<}. 


636 


CHAPTER  LII. 

BRANCH  ROADS— SIDE  AND  SPUR  TRACKS. 

Definition  Of  branch  road. — The  definition  of  a  branch  road 
can  depend  neither  upon  its  length  nor  its  direction.  The 
word  "branch"  in  such  connection  is  equivalent  to  "section" 
or  "subdivision,"  and  is  as  applicable  to  a  direct  extension 
from  the  terminus  as  to  an  offshoot  of  the  main  road.  A  lat- 
eral road,  however,  is  a  road  branching  off  from  the  side. 
1  Elliott  on  Railroads,  sec.  42;  20  Am.  &  Eng.  R.  R.  Cases, 
314;  66  Mo.,  228;  86  Va.,  618;  43  Am.  &  Eng.  R.  R.  Cases, 
617;  but  see  Rorer  on  Railroads,  p.  36. 

[In  Tennessee.]  Power  of  this  company  to  construct— The 

right  to  construct  branch  roads  may  be  said  generally  to  de- 
pend upon  charter  provisions.  Unless  power  to  build  them  is 
conferred  upon  a  company  by  its  charter  or  the  general  laws 
of  the  land,  either  in  express  terms  or  by  necessary  implication, 
they  cannot  be  constructed,  and  no  power  exists  to  condemn  a 
right  of  way  therefor.  12  Vroom  (X.  J.),  205;  1  La.  Ann., 
128;  9  La.  Ann.,  284;  20  Am.  &  Eng.  R.  R.  Cases,  319;  79 
Pa.  St.,  257;  56  Pa.  St.,  325,  305;  35  Md.,  224;  3  Am.  & 
Eng.  R.  R.  Cases  (annotated),  71;  95  Ala.,  434. 

The  only  provision  in  the  charter  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  upon  this  subject  is  to  be  found  in 
sec.  22,  p.  13  herein,  which  provides  that  "the  said  company 
shall  have  the  right,  when  necessary,  to  construct  the  road,  or 
any  branch  thereof,  across  or  along  any  public  road  or  water 
course;  Provided"  etc.  In  addition,  sec.  40  of  the  charter  of 
the  railway  permits  other  corporations  or  individuals  to  con- 
struct branches  to  connect  with  this  road,  with  permission  of 
the  legislature,  upon  certain  terms  therein  set  out. 

A  literal  construction  of  the  above  sections,  however,  would 
hardly  confer  upon  this  company  the  right  to  construct  branch 


GENERAL    POWERS   OF   THE    N. ,    C.    £    ST.    L.     RY.  637 

roads.  It  was  evidently  the  intention  of  the  legislature  to  do 
so,  as  the  following  act,  passed  subsequently,  indicates: 

"Be  it  enacted,  That  the  Shelbyville  Branch,  and  such  other 
branches  of  the  Nashville  &  Chattanooga  road  as  may  be  made, 
shall  have  all  the  rights  and  privileges  and  shall  be  placed,  in 
all  respects,  on  the  same  footing  with  the  Nashville  &  Chatta- 
nooga road;  Provided,  That  nothing  in  this  act  shall  be  so 
construed  as  to  diminish  the  liability  of  the  stockholders  of  the 
company  in  any  way."  Acts  Tenn.,  1849-50,  ch.  266. 

Whether  this  latter  act  gives  the  right  to  construct  branches 
in  the  future  or  not,  it,  at  least,  clothes  them,  when  lawfully 
constructed,  with  very  valuable  rights  and  privileges — namely, 
those  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway. 

Nothing,  however,  under  the  present  law  would  prevent  the 
company  from  purchasing  branches  after  they  are  built,  and, 
in  some  cases,  before  they  are  completed,  if  they  are  not  com- 
peting lines  and  have  the  power  to  sell,  either  under  their 
charter  or  the  general  law.  See  "Purchase  of  Roads  "  herein. 

May  build  brancb  roads,  When. — Under  the  general  laws  of 
the  state  of  Tennessee,  however,  any  railroad  company  oper- 
ating a  railroad,  or  any  part  of  same,  in  Tennessee,  or  that 
may  hereafter  do  so,  shall  have  power  to  build  or  acquire  lat- 
eral or  branch  lines  of  railroad,  not  to  exceed  fifteen  miles  in 
length,  for  any  one  of  such  lateral  or  branch  roads,  extending 
from  its  main  stem  in  Tennessee  to  any  mine  or  quarry,  or  into 
any  mineral  section  of  country  tributary  to  such  main  stem, 
for  the  purpose  of  developing  the  mineral  material  re- 
sources of  the  country;  and  such  railroads  shall  have  power  to 
condemn  private  property  for  use  in  the  construction  and  oper- 
ation of  such  lateral  or  branch  roads;  Provided,  That  private 
property  shall  not  be  taken  therefor  against  the  owner's  will, 
without  condemnation  thereof,  as  now  provided  by  law  in  other 
cases,  and  such  roads  shall  be  as  common  carriers,  subject  to 
the  same  duties  and  restrictions  as  the  main  lines  with  which 
they  connect.  Acts  Tenn.,  1899,  ch.  259,  p.  587. 

1.  The  second  section  of  the  above  act  provided  that  nothing  therein 
should  be  so  construed  as  to  authorize  the  purchase  or  consolidation  of, 


638  BRANCH    ROADS,    SIDE    TRACKS. 

or  with,  competing  lines,  or  to  relieve  them  from  taxation  on  said 
branches. 

2.   For  method  of  condemning,  see  "Eminent  Domain  "  herein. 

Same. — Under  another  act  of  Tennessee  it  is  provided  that 
"any  railway  company  chartered  under  the  laws  of  the  state 
of  Tennessee,  and  now  operating,  or  which  may  hereafter 
operate  any  line  of  railway  within  this  state,  is  granted 
authority  and  power  to  build  lateral  roads,  not  exceeding  eight 
miles  in  length,  extending  from  the  main  stem  of  said  line  of 
railroad  to  any  mill,  quarry,  mine,  manufacturing  plant,  or 
the  bank  of  any  navigable  stream,  without  the  making  of  any 
amendment  to  the  charter  of  said  railroad;  Provided,  Private 
property  shall  not  be  taken  for  the  uses  of  such  company,  or 
the  construction  of  such  lateral  branches,  without  condemna- 
tion thereof,  as  now  provided  by  law."  Acts  Tenn. ,  1895,  p. 
314,  ch.  152.  Power  to  construct  gives  implied  power  to  con- 
demn. Elliott  on  K.  R.,  sec.  42.  The  words  "main  stem" 
in  the  above  act  would  doubtless  be  construed  to  apply  not 
only  to  the  main  stem  proper,  but  to  all  well  established  and 
important  branches  that  were  originally  constructed  under 
their  own  charter  and  subsequently  purchased  or  leased  by  this 
company;  as,  for  instance,  the  Northwestern  Branch,  the  Cen- 
treville  Branch,  etc.  These  roads  were  originally  the  "  main 
lines"  of  their  respective  companies.  They  were  not  pur- 
chased under  a  restricted  authority  to  purchase  bra?icke$>,  but 
under  a  broader  authority  to  purchase  other  railroads.  This 
being  so,  the  authority  conferred  by  the  legislature  to  purchase 
and  operate  other  roads  would  doubtless,  by  implication,  con- 
stitute the  roads  so  purchased  a  part  of  the  main  stem.  As  to 
the  method  of  condemnation,  and  in  whose  name  to  be  done, 
where  the  lateral  road  is  to  extend  from  a  purchased  or  leased 
branch,  see  "Eminent  Domain"  herein. 

What  charters  may  be  amended  so  as  to  authorize  branch 

roads. — In  this  connection  it  may  be  added  that  all  railroads 
chartered  under  the  general  laws  of  the  State  of  Tennessee, 
may  amend  their  charters  so  as  to  build  branch  roads.  Acts 
Tenn.,  1889,  p.  303,  ch.  158.  It  will  be  noticed,  however, 


GENERAL    POWERS   OF   THE    N. ,    C.    A    ST.    L.    KY.  639 

that  this  act  only  applies  to  railways  chartered  under  the 
general  laws,  and  not  to  those  chartered  by  special  act,  as  was 
the  Nashville,  Chattanooga  &  St.  Louis  Railway. 

For  method  of  condensing  see  "  Eminent  Domain  "  herein. 

Right  of  others  to  construct  branch  roads  to  connect  with 
Nashville,  Chattanooga  &  St.  Louis  Railway.— Section  40  of 

the  charter,  p.  23  herein,  provides  that  "any  individual  or  in- 
dividuals, company  or  body  corporate,  with  permission  of  the 
legislature  of  this  state,  may  hereafter  construct  branches  to 
unite  with  the  Nashville  and  Chattanooga  Railroad,"  and  then 
proceeds  to  set  out  the  terms  and  conditions  upon  which  it 
may  be  done.  For  particulars  see  section  40  of  charter  and 
notes  thereunder. 

May  build  branch  roads  to  unite  with  other  railways.— 

Under  the  general  law  all  railways  have  the  power  to  construct 
their  roads  so  as  to  unite  with  each  other  as  with  branches. 
Acts  Tenn.,  1851-2,  §  16,  ch.  151;  Code  Tenn.  (S.1)  1504. 

Under  this  a  railway  may  condemn  land  to  build  a  track  connecting 
or  uniting  it  with  another  railroad.     14  Lea,  65;  9  Bax.,  522. 

[In  Alabama.]    Branch  roads  may  be  constructed  or  lines 

extended. — In  Alabama  it  is  provided  that  "a  corporation,  now 
existing  or  which  may  hereafter  be  organized  for  the  building, 
constructing,  and  operating  a  railroad  has  authority,  for  the 
purpose  of  extending  its  line  or  forming  a  connection,  to  ac- 
quire, hold,  and  operate  a  railroad  without  the  state;  or  within 
the  state  may  extend  its  road,  or  may  build,  construct,  and 
operate  branch  roads  from  any  point  or  points  on  its  line." 
Code  Ala.,  1896,  £1172. 

Same.    Mode  of  making,  purchasing,  or  extending  branch 

roads. — Such  purchase  must  be  made  by  resolution  of  the 
board  of  directors,  which  must  be  submitted  to  a  meeting  of 
the  stockholders,  called  for  the  purpose  of  its  consideration;  of 
the  time  and  place  of  which  meeting,  and  of  the  purpose  for 
which  it  is  called,  thirty  days'  notice  must  be  given  to  each 
stockholder  whose  residence  is  known  and  by  publication  for 
four  consecutive  weeks  in  a  newspaper  published  at  the  princi- 
pal place  of  business  of  the  corporation,  and  at  such  meeting 


640  BRANCH    ROADS,    SIDE    TRACKS. 

must  be  approved  by  the  vote  of  a  majority  in  value  of  the 
stockholders;  and  if  such  resolution  is  so  approved,  a  copy 
thereof,  and  of  the  proceedings  of  the  meeting  of  the  stock- 
holders, certified  by  the  president  and  secretary,  under  the  cor- 
porate seal,  must  be  filed  and  recorded  in  the  office  of  the  sec- 
retary of  state.  Such  extension  or  construction  of  such  branch 
road  must  be  made  by  resolution  of  the  board  of  directors,  to 
be  entered  in  the  record  of  the  proceedings  of  the  corporation, 
and  designating  the  point  from  which  and  the  point  to  which 
such  extension,  or  such  branch  road,  is  to  be  constructed.  A 
copy  of  such  resolution,  certified  by  the  president  and  secre- 
tary, under  the  corporate  seal,  must  be  filed  and  recorded  in 
the  office  of  the  secretary  of  state,  and  thereafter,  for  the  pur- 
pose of  making  such  extension  or  building  such  branch  road, 
such  corporation  shall  have  all  the  rights,  powers,  and  immu- 
nities which  are  now  or  may  hereafter,  by  the  laws  of  this 
state,  be  granted  to  and  vested  in  railroad  corporations  under 
and  by  virtue  of  the  general  incorporation  laws  of  the  state. 
Code  Ala.,  1896,  §1173. 

For  method  of  condemnation,  see  "  Eminent  Domain,"  herein. 

[in  Georgia.]  Branch  roads  and  extensions  may  be  built, 

how. — "  Every  railroad  company  may  extend  its  railroad  from 
any  point  named  in  the  petition  for  charter,  or  may  build  branch 
roads  from  any  point  or  points  on  its  line  of  roads.  Before 
making  any  such  extensions  or  building  any  such  branch  roads, 
said  company  shall,  by  resolution  of  its  board  of  directors,  to 
be  entered  in  the  records  of  its  proceedings,  designate  the  route 
of  such  proposed  extension  or  branch,  and  advertise  same  in  all 
of  the  counties  through  which  said  extension  or  branch  road 
will  run,  for  the  time  and  in  the  manner  provided  by  section 
*2160,  and  file  a  certified  copy  of  such  resolution  and  adver- 
tisements in  the  office  of  the  secretary  of  state,  which  shall  be 
by  him  recorded  as  original  petitions  for  charters  are  filed,  and 
said  company  shall  pay  to  the  treasurer  of  the  state  for  the 
same  a  fee  of  twenty-five  dollars  for  each  extension  or  branch 
road.  Thereafter  said  railroad  shall  have  the  right,  within  one 
year  from  the  filing  of  said  resolution  with  said  secretary,  to 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     641 

begin  the  construction  and  equipment  of  said  branch  or  exten- 
sion, and  if  they  fail  to  construct  as  much  as  twenty  miles  within 
two  years,  or  complete  the  same  if  it  be  less  in  length  than 
twenty  miles,  the  powers  and  privileges  to  do  so  shall  cease 
and  determine.  For  the  purpose  of  such  extension  or  branch 
road  said  company  shall  have  all  the  rights  and  privileges  of 
condemning  rights  of  way,  or  acquiring  the  same,  provided  for 
constructing  and  building  the  main  line.  All  the  provisions  of 
this  article  relative  to  the  issuance  of  stocks  and  bonds  on  the 
road,  authorized  under  the  original  petition  for  incorporation, 
shall  be  applicable  to,  and  control  the  issuance  of,  stocks  and 
bonds  on  said  proposed  extensions."  Code  Ga. ,  1895,  §  2169; 
Acts  Ga.,  1892,  p.  45. 

*1.  Section  2160,  above  referred  to,  provides,  among  other  things,  that 
"  they  have  four  weeks'  notice  of  their  intention  to  apply  for  said  char- 
ter, by  the  publication  of  said  petition  in  one  of  the  newspapers  in  which 
the  sheriff's  advertisements  are  published,  in  case  there  is  a  newspaper 
published  in  said  county,  in  each  of  the  counties  through  which  said  pro- 
posed road  will  probably  run,  once  a  week  for  four  weeks  before  the  fil- 
ing of  said  petition." 

2.  By  \  5799  of  the  code  of  Georgia.  1895,  it  is  also  provided  that  rail- 
roads may  take  advantage  of  amendments  for  the  purpose  of  allowing 
any  existing  road  to  take  stock  in  or  aid  in  the  building  of  any  branch 
road,  without  bringing  the  charter  of  said  company  under  the  provisions 
of  the  constitution  of  Georgia. 

3.  For   method   of  condemning   land   for,   see    ''Eminent    Domain," 
herein.     Refer  to  index. 

[In  Kentucky.]    Branch  roads,   switches,  spurs,  etc.— 

"Any  company  may  build  such  spurs,  switches,  tracks  or 
branches  as  may  be  necessary  to  conduct  its  business  or  de- 
velop business  along  its  line  of  road,  and  for  that  purpose  shall 
have  all  the  powers,  and  be  subject  to  the  same  restrictions  and 
liabilities,  as  are  conferred  upon  it  for  the  construction  of  ite 
main  line,"  etc.  Code  Ky.  1894,  §  769. 

For  method  of  condemning  land  for,  see  "  Eminent  Domain"  herein. 
Refer  to  index. 

[Generally,]  May  build  side  tracks  and  spur  tracks.— It  is 

well  recognized  that  a  railway  company  may  build  side  tracks 
and  spur  tracks  on  its  right  of  way  to  establishments  of  ship- 
pers, as  a  power  incidental  to  expressly  granted  powers.  Elliott 

41 


64:2  BRIDGES,    POWER   TO    BUILD,    ETC. 

on  Railroads,  vol.  1,  §42;  43  Minn.,  527;  43  Am.  &  Eng.  R. 
R.  Cas.,  170;  65  Pa.  St.,  1;  3  Am.  &  Eng.  R.  R.  Cas.,  186. 
But  see  31  W.  Va.,  710;  36  Am.  &  Eng.  R.R.  Cas.,  531,  553; 
72  Mich.,  206. 

[In  Alabama.]  Though  a  railroad  may  have  implied  power 
to  construct  necessary  turnouts  and  switches,  yet  the  power  to 
construct  a  branch  is  only  given  by  statute.  95  Ala.,  434. 

For  method  of  condemning,  see  "  Eminent  Domain"  herein,  sub-head 
successive  appropriation. 


CHAPTER  LIII. 

BRIDGES— POWER  TO  BUILD,  REPAIR,  ETC. 

Charter  provisions. — The  charters  of  nearly  every  one  of 
the  roads  now  owned  and  controlled  by  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  have  clauses,  or  some  special  act, 
permitting  and  regulating  the  erection  of  bridges  over  water 
courses.  As  only  the  main  branch  and  northwestern  division 
cross  navigable  streams,  the  charter  provisions  of  those  roads 
alone  will  be  here  set  out.  For  information  as  to  the  other 
branches,  see  notes  to  their  respective  charters. 

Same.    Main  branch  authorized  to  build.— By  section  22 

of  its  charter  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
was  given  the  right  when  necessary  to  construct  the  road,  or 
any  branch  thereof,  across  or  along  any  public  road  or  water 
course;  Provided,  That  the  said  road  and  the  navigation  of 
such  water  course  shall  not  be  thereby  obstructed.  See  p.  13 
herein. 

The  above  section  does  not  prevent  temporary  obstructions  when 
necessary  in  building  and  repairing.  6  Pick.  (Tenn.);  638;  88  Tenn.,  331; 
119  U.  S.,  280,  543. 

Same.    Main  branch  authorized  to  purchase.— By  section 

23  of  the  charter  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way was  given  power  to  purchase,  have,  and  hold  any  bridge 


GENERAL    POWERS   OF   THE    N.,    C.    A   ST.    L.    RY.  643 

or  turnpike  road  over  which  it  may  be  necessary  to  carry  the 
said  railroad.  See  p.  14  herein. 

Same.  Northwestern  branch  authorized  to  build  or  pur- 
chase bridges,  hOW. — For  full  discussion  of  this,  see  pp.  91, 
99,  herein. 

Bridge  at  Bridgeport,  on  main  line  over  Tennessee  river, 

hOW  authorized. — For  full  discussion  of  this,  see  notes  on  p. 
14  herein. 

Lights  must  be  erected,  draws  opened,  etc.;  how.  —  [Tenn.  Acts.] 
All  railroads  crossing  navigable  streams  shall,  upon  signal  given  by  any 
steamboat,  open  its  draw  immediately  and  hoist  large  red  light,  if  at 
night,  at  least  ten  feet  above  top  of  gallies  frame,  and  put  white  light 
on  each  end  of  draw  as  a  signal  that  all  is  ready.  Code  Tenn.  (M.  &  V.), 
{1533.  [Alabama  Acts.]  By  §3445  of  the  code  of  Alabama,  1896,  all 
steamboats  are  required  to  whistle  three  miles,  two  miles,  one  mile,  and 
one-half  a  mile  from  bridge  on  approaching.  Section  3446,  of  same 
code,  provides  that  the  railroad  company  shall  thereupon  open  said 
draw.  Section  3447,  of  same  code,  also  provides  for  a  method  of  signal 
lights  to  be  used  by  railroa.d  to  let  boats  know  all  is  ready. 

Bridge  at  Johnsonville,  on  Northwestern  Division,  over 
Tennessee  river;  how  authorized.— For  full  discussion  of  this, 

see  sec.  43  of  charter,  and  notes  thereunder,  of  Nashville  & 
Northwestern  Railroad  Company,  pp.  43,  44  herein. 
See  notes  to  preceding  section. 

Right  to  temporarily  obstruct  water  courses  in  erecting 

and  repairing. — The  obstruction  of  a  water  course,  whether 
navigable  or  nonnavigable,  by  the  placing  in  the  stream  of 
such  temporary  structures  as  are  absolutely  essential,  and 
without  which  the  work  of  erecting  or  repairing  could  not  be 
accomplished,  is  legal,  provided  the  company  take  care  that 
such  obstruction  shall  extend  no  further  and  be  maintained  no 
longer  than  is  absolutely  necessary  for  the  completion  of  the 
work  by  the  exercise  of  due  diligence  and  the  employment  of 
an  adequate  force  of  men  and  machinery.  Moreover,  such 
necessary  obstruction  is  not  within  the  prohibition  of  the 
statute  which  provides:  "No  mill  dam,  fish  trap,  bridge,  or 
other  improvement  shall  be  allowed  so  as  to  interrupt  or  in  any- 
way impair  the  navigation  of  any  water  course  of  the  state." 
6  Pick.,  638;  88  Tenn.,  331;  119  U.  S.,  280-285,  543-550. 


644  BY-LAWS. 

If  the  stream,  however,  is  one  of  the  navigable  waters  of 
the  United  States,  then,  before  such  bridge  is  built  or  obstruc- 
tions erected,  a  plan  of  the  same  must  be  submitted  to  and 
approved  by  the  secretary  of  war.  See  acts  of  Congress  1888, 
ch.  860,  as  amended  by  acts  of  1890,  ch.  907,  sec.  7. 

What  is  meant  by  ' '  one  of  the  navigable  waters  of  the 
United  States"  is  a  stream  that  is  navigable  in  fact,  and 
which,  by  itself  or  its  connections  with  other  waters,  forms  a 
continuous  channel  for  commerce  with  foreign  countries  or 
states.  109  U.  S.,  385-395;  20  Wall.,  430;  (22:391). 

If  the  stream  is  navigable  only  between  different  places 
within  the  state,  then  congress  has  no  jurisdiction  over  it,  but 
only  the  state  legislature,  and  it  is  not  one  of  the  ' '  navigable 
waters  of  the  United  States."  11  Wall.,  411;  109  U.  S., 
385,  In  such  cases  the  permission  of  the  secretary  of  war 
need  not  be  requested. 


CHAPTER  L1V. 

BY-LAWS— HOW  AND  BY  WHOM  TO  BE  ENACTED  AND  AMENDED 
—WHAT    ARE    LEGAL— PRESENT  BY-LAWS   OF  NASH- 
VILLE, CHATTANOOGA  &  ST.  LOUIS  RAILWAY. 

[See  also  Meetings.] 

By  wbom  to  be  enacted.— Under  sections  1  and  9  of  the 
charter  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway  the 
stockholders  were  originally  given  the  power  to  pass  all  such 
regulations,  rules,  and  by-laws  as  might  be  necessary  for  the 
government  of  the  corporation  and  the  transaction  of  its  busi- 
ness, but  this  was  amended  by  the  acts  of  1847-8  ch.  70, 
and  accepted  by  the  company,  so  as  to  confer  upon  the  direc- 
tors, instead  of  upon  the  stockholders,  all  such  power.  Ordi- 
narily the  directors  have  no  power  to  make  by-laws,  but  in 
this  instance  the  power  has  been  conferred  upon  them  by  an 
amendment  to  the  charter. 

This  was  legal.     See  8  Bax.  (Term.),  108. 


GENERAL   POWERS   OF   THE    N.,    C.    A    ST.    L.    RY.  645 

What  by-laws  are  legal. — Generally  speaking  a  corporation 
has  the  implied  right  and  power  to  enact  any  by-laws  not  in- 
consistent with  the  charter,  constitution,  and  laws  of  the  land, 
for  its]  government  and  the  government  of  its  officers  and 
agents.  Rorer  on  Kail  roads,  226;  18  Gratt,  819;  91  Tenn., 
64.  A  by-law  imposing  restraints  upon  the  alienation  of  stock, 
however,  is  void.  3  Lea,  6. 

By-laws  proper  are  not  of  a  public  nature  and  are  obliga- 
tory only  .upon  the  corporate  body,  its  corporators  and  agents. 
They  do  not  affect  the  public  in  general,  and  hence  large  lati- 
tude is  allowed  in  their  enactments  and  they  are  considered 
reasonable  if  they  are  not  in  violation  of  the  charter,  the  con- 
stitution, and  the  general  laws  of  the  land. 

By-laws, -however,  are  not  what  are  usually  meant  by  the 
terms  "rules  and  regulations."  The  latter  are  for  the  direc- 
tion and  government  of  the  employes  and  servants  practically 
conducting  the  business  of  or  engaged  in  operating  the  road 
and  for  passengers  and  others  of  the  public  transacting  busi- 
ness with  the  company.  Rorer  on  Railroads,  226;  4  Zabr.,  435. 

The  law  governing  the  enactment  of  rules  and  regulations, 
as  they  affect  the  public,  is  different  from  that  relating  to  the 
passage  of  by-laws.  See  subhead,  "  Rules  and  Regulations." 

By-laws  of  a  corporation  are  not  evidence  for  it  against 
strangers  who  deal  with  it,  unless  such  by-laws  are  brought 
home  to  their  knowledge  and  are  assented  to  by  them.  Rorer 
on  Railroads,  p.  227;  68  N.  C.,  107. 

HOW  enacted  Or  amended. — All  by-laws,  orders,  and  resolu- 
tions adopted  by  a  railway  company  are  always  under  the  con- 
trol of  a  majority  of  the  stockholders  [or  directors  where  they 
are  given  the  authority  to  pass  them,  as  in  this  instance],  unless 
expressly  provided  otherwise  by  the  charter,  and  may  be  re- 
pealed, altered,  or  modified  from  time  to  time  by  the  majority. 
5  Sneed  (Tenn.),  566-68.  The  present  by-laws  of  the  com- 
pany provide  that  "no  alteration  or  amendment  shall  be  made 
in  these  by-laws  except  with  the  consent  and  approval  of  a 
majority  of  the  whole  board,  and  shall  first  have  been  brought 
up  at  one  meeting  of  the  board,  and  laid  over  until  the  following 
one."  See  by-laws  in  question,  set  out  below. 


64:6  BY-LAWS    OF    THE    N. ,    C.    &    ST.    L.    RY. 


PRESENT  BY-LAWS  OF  THE  N.,  C.  &  ST.  L.  RY. 


The  following  are  the  by-laws  of  the  N.,  C.  &  St.  L.  Ry.  as 
adopted  by  the  board,  Dec.  1-i,  1898: 

BY-LAWS. 


STOCKHOLDERS'  MEETINGS. 

SECTION*  1.     A  general  meeting  of  the  stockholders  shall  take  place 
Annual  meet-      annually,  on  the  first  Wednesday  after  the  second  Tuesday 

ing  of  stock- 
holders, of  September,  in  the  city  of  Nashville,  at  which  an  elec- 
tion for  fifteen  directors  of  the  company  shall  be  held.     Notice  shall  be 
Notice  to  be       given  by  publication  in  one  or  more  of  the  newspapers  of 
&lven'  the  state,  as  may  be  ordered  by  the  board  of  directors. 

SEC.  2.  Should  the  time  fixed  for  the  annual  election  of  directors  pass 
Board  of  stock-    without  an  election  being  effected,  the  same  may  be  held 

holders  to  fix 

date  of  meet-  on  such  subsequent  day  as  may  be  designated  by  the  board 
faflureCtc>8hold  °^  directors  or  by  the  stockholders  at  a  general  meeting, 
election.  notice  of  which  election  shall  be  given  in  the  manner  afore- 

said. 

SEC.  3.  In  all  cases,  the  directors  for  the  time  being,  and  the  officers 
Directors  and      elected  bv  them,  shall  continue  in  office  until  their  succes- 

officers  hold 

over.  sors  shall  be  elected. 

SEC.  4.  The  presence,  in  person  or  by   proxy,  of  those  who  are  the 

owners  of  a  majority  of  the  stock  of  the  company  shall  be 
Legal  meeting. 

necessary  to  constitute  a  legal  meeting  of  the  stockholders, 

authorized  to  transact  business. 

DIRECTORS. 

SEC.  5.  The  officers  of  the  company  to  be  elected  by  the  directors  shall 
Officers  be  a  president,  who  shall  be  a  member  of  the  board,  a  sec- 

retary, treasurer,  and  comptroller. 

In  addition  to  the  officers  designated,  there  shall  be  appointed  by  the 
Officers  president,  subject  to  confirmation  by  the  directors,  a  gen- 

appointed,  eral  manager,  traffic  manager,  general  counsel,  real  estate 

agent,  and  such  other  officers  as  he  shall  from  time  to  time  deem  neces- 
sary. 

SEC.  6.  The  principal  office  of  the  company   shall  be  in  Nashville, 

Principal  Tenn.,  and  shall  be  kept  open  every  day  except  Sundays 

and  legal  holidays,  unless  otherwise  ordered  by  the  board 

of  directors  or  president.     Regular  meetings  of  the  board  shall  be  held 


GENERAL    POWERS    OF    THE    N. ,    C.    A    ST.    L.     RY.  647 

at  the  office  of  the  company  in  the  city  of  Nashville,  Tenn.,  Board  meet- 
on  the  second  Tuesday  of  January,  April,  July,  and  Octo-  '•*•• 
ber,  at  eleven  o'clock  A.M.     Other  meetings  of  the  board  shall  be  held 
on  the  call  of  the  president,  as  the  business  of  the  com-  special  board 
pany  may  demand.     Special  meetings  may  also  be  held  at  m««tin««- 
the   request,  in   writing,  of  any   three  members  of  the  board.     Eight 
members  shall  constitute  a  quorum  for  the  transaction  of  Quorum  of  the 
business.  board< 

SEC.  7.  The  president  shall  preside  at  meetings  of  the  board,  preserve 
order,  and  regulate  debate  according  to  the  usual  parlia-  Presiding 
mentary  rules.     In  the  absence  of  the  president,  a  chair-  offloer- 
man  pro  tempore  shall  be  appointed  by  the  board. 

SEC.  8.  There  shall  be  appointed  annually,  as  soon  as  may  be  after 
the  organization  of  the  board,  the  following  standing  com- 
mittees, viz. :     An  executive  committee,  consisting  of  three  committee*, 
members  of  the  board,  whose  duty  it  shall  be  to  aid  and  Executive 

committee. 

direct  and  advise  in  the  management  of  the  affairs  of  the 

company  as  might  be  done  by  the  board  of  directors  if  in  session.     Said 

committee  shall  meet  at  the  call  of  its  chairman,  or  at  the  request  of  the 

president. 

A  finance  committee,  consisting  of  three  members  of  the  board,  which 
shall  have  general  supervision  of  the  funds  and  securities  of  the  com- 
pany.    It  shall  also  be  its  duty  to  examine  and  count  the  finance 
securities  and  cash  in  the  custody  of  the  treasurer  at  least  e°mm»tt««. 
once  every  three  months,  and  report  to  the  board  of  directors  as  soon 
as  possible  after  the  first  days  of  January,  April,  July,  and  October  in 
each  year. 

The  president  shall  be  ex  offlclo  a  member  of  all  commit-  _ 

President  ex- 

tees,  and  shall  be  notified  of  all  meetings  of  committees.        officio  member 

All  committees  shall  be  appointed   by   the  president,  *"  committ«««- 
unless  otherwise  ordered  by  the  board. 

SEC.  9.  All  elections  for  officers  shall  be  by  ballot,  unless  officers,  mode 
by  unanimous  consent,  when  the  vote  may  be  taken  viixi  °'electinf- 
voce. 

Any  vacancies  that  may  occur  in  the  board,  from  any  cause  whatever, 
shall  be  filled  by  the  board  by  the  election  of  a  person  to  Vacancies 
fill  such  vacancy,  as  provided  for  in  the  tenth  section  of  koard. 
the  charter. 

SEC.  10.   No  member  of  the  board  shall,  on  behalf  of  this  company, 
negotiate  any  contract  or  arrangement  for  work  or  materials  for  the  use 
and  benefit  of  this  company,   to  be  done  or  furnished  by  Directors  shall 
any  company  or  partnership  in  which  he  may  have  an  in-  "n5tcoVtracult*d 
terest,   nor  shall  he  be  entitled  to  vote  on  the  acceptance  with  company, 
or  approval  of  any  purchase  or  contract  in  which  he  is  interested. 

No  officer,  agent,  or  employe  of  the  company  shall  be  concerned,  di- 
rectly or  indirectly,  in  any  contract,  arrangement,   or  engagement  for 
doing  work  or  furnishing  materials  to  the  company,  or  be  officers. 
connected  with  any  other  company,  person,   or  firm  en-  5f*yes',haU*m~ 
gaged  in  the  transportation  of  persons  or  property  over  its  not  be  interested 

.     .  in  contracts 

lines,    or    be    interested    in    any    manner    whatsoever    in  with  company. 


648  BY-LAWS    OF    THE    N. ,    C.    &    ST.    L.    RY. 

any  business  done  with  the  company  when  transacted  by  others  over  its 
lines. 

No  money  shall  be  advanced,  nor  shall  any  financial  obligation  or 
Restrictions  as  contract  for  advancing  money  to  any  individual  or  com- 
financiaf0 '  pany,  or  for  leasing,  operating,  constructing,  or  otherwise 
obligations.  controlling  any  road  of  any  other  company,  be  entered 
into,  unless  the  matter  shall  have  been  first  brought  to  the  special  at- 
tention of  the  board,  when  it  shall  be  discussed  and  laid  over  until  the 
next  meeting  (unless  by  unanimous  consent  of  the  members  present), 
and  become  valid  only  by  receiving  the  approval  of  a  majority  of  the 
whole  board. 

Order  of  SEC.  11.  The  order  of  business  shall  be  as  follows: 

business.  j    Reading  of  minutes,  which  shall  stand   approved  if 

there  be  no  motion  to  amend  them. 

2.  Report  of  committees. 

3.  Report  of  the  president,  or  other  officers  of  the  company. 

4.  Miscellaneous  communications. 

5.  Unfinished  business. 

6.  New  business. 

Certificates  of  SEC.  12.  Certificates  of  stock  shall  be  issued  to  the  stock- 

stock,  stockholders,  and  transfers  of  them  made  when  required. 

Any  person  or  persons  claiming  a  certificate  or  evidence  of  stock  to  be 
issued  in  lieu  of  one  lost  or  destroyed,  shall  advertise  the  same  in  one  or 
more  newspapers  in  Nashville,  Tenn.,  twice  a  week  for  four  weeks,  giv- 
ing the  number  and  date  of  certificate  lost,  and  the  number 
fiMte'rf'stock!"  of  shares  it  represented.  The  party  shall  then  make  appli- 
cation to  the  board  of  directors,  describing  the  certificate 
by  its  number,  date,  and  amount,  and  give  full  details  as  to  the  manner 
of  loss,  verified  by  oath  or  affirmation,  and  accompanied  by  a  copy  of  the 
advertisement,  and  also  a  bond  of  indemnity,  with  satisfactory  security, 
in  at  least  double  the  amount  of  the  par  value  of  the  shares  represented 
by  the  certificate,  against  any  loss  or  damage  that  may  arise  from  the 
issuing  of  a  new  certificate,  whereupon  the  board  may  direct  the  issue  of 
a  new  certificate  of  the  same  tenor  with  the  one  alleged  to  have  been 
lost  or  destroyed,  specifying  upon  the  face  of  the  certificate  that  it  is  in 
lieu  thereof  and  a  duplicate. 

SEC.  13.  All  notes  issued  by  the  company  shall  be  signed  by  the  presi- 
dent, countersigned  by  the  treasurer,  or  the  assistant  treas- 
by8tnVcompany   urer'  an(*  have  the  seal  of  the  company  affixed  by  the  secre- 
tary, or  persons  specially  authorized  in  case  of  his  absence 
or  disability. 

SEC.  14.  The  official  seal  now  in  use  by  the  company  shall  continue  to 
Official  seal.  be  its  official  seal  until  otherwise  ordered. 

SEC.  15.  No  alteration  or  amendment  shall  be  made  in  these  by-laws 

except  with  the  consent  .and  approval  of  a  majority  of  the 

amendment          whole  board,  and  shall  first  have  been  brought  up  at  one 

of  by-laws.          meeting  of  the  board,  and  laid  over  until  the  following1  one. 


GENERAL   POWERS   OF   THE    N.,    C.    &    ST.    L.    RY.  '.4'.' 

SEC.  16.  All  by-laws  and  regulations  in  conflict  herewith  are  hereby 
repealed  and  abrogated,  and  these  by-laws  shall  take  effect  jomn 
and  be  in  force  from  and  after  January  1,  1899.  repealed. 

ORGANIZATION  FOR  CONDUCTING  THE  BUSINESS  OF  THE 

COMPANY. 

That  the  duties,  powers,  and  responsibilities  of  the  officers  and  em- 
ployes of  the  Nashville,  Chattanooga  and  St.  Louis  Railway  may  be  de- 
fined and  fully  understood,  and  its  accounts  systematically  and  correctly 
kept,  the  board  of  directors  has  adopted  the  following  organization  for 
conducting  the  business  of  the  company: 

The  administrative  duties  upon  the  line  of  the  road,  its  branches,  and 
the  connecting  roads  over  which  the  company's  cars  now 

Distribution  of 

or  may  hereafter  pass,  shall  be  distributed  as  follows,  viz.:    administrative 
To  the  general  office,  the  operating  department,  traffic  de-    dutiet> 
partment,  supply  department,  accounting  department,  law  department, 
and  real  estate  department,  with  such  other  agencies  for  special  objects 
as  the  board  may  from  time  to  time  deem  necessary. 

GENERAL  OFFICE. 

PRESIDENT. 

The  president  shall  preside  at  the  meetings  of  the  board  of  directors 
and  be  ex  officto  member  of  all  committees.     He  shall  call 
meetings  of  the  board  and  of  the  committees  when  he  deems. 
necessary.     He  shall  be  the  medium  of  communication  to  the 
board  and  to  the  committees  of  all  matters  presented  for  their  consid- 
eration, and  shall  have  general  supervision  and  direction  of  all  depart- 
ments of  the  company's  service. 

TREASURER. 

The  treasurer  shall  give  bond  in  the  sum  of  not  less  than  $25,000,  or 
deposit  with  a  safe  depositary  agreed  on  by  the  parties,  se-  Duties  of  treas- 
curities  of  that  value  (in  neither  of  which  shall  a  member  of  »f" .\J?on*  for 

$25,000  ;  custo- 

the  board  or  officer  of  the  company  be  a  party  or  interested)  dim  of  com- 
for  the  faithful  performance  of  all  his  duties.  He  shall  be  ^.^uriSel" 
the  custodian  of  the  company's  funds  and  securities.  The  withdrawal  of 

securities. 

securities  shall  be  deposited  in  the  company's  box  in  a  safe 
deposit  company's  vault,  and  shall  be  deposited  or  withdrawn  only  in 
the  presence  of  the  president  or  a  member  of  the  finance  committee,  and 
shall  be  withdrawn  for  sale  or  otherwise  only  on  the  written  order  of 
the  president,  which  order  shall  specify  the  disposition  of  such  securi- 
ties to  be  withdrawn.     He  may  retain  in  his  safe  notes  received  by  the 
company.    He  shall  keep  a  set  of  books  showing  the  receipts 
and  disposition  of  all  the  company's  funds  and  securities  tis^afe'sundry 

that  may  pass  through  his  hands,  and  keep  the  accounts  no,u§ ;  tr«»*ur- 

er  s  account*, 
with  such  banks  or  places  of  deposit  as  the  board,  or  finance 

committee  with  the  approval  of  the  board,  may  from  time  to  time  desig- 
nate. 


650  BY-JLAWS    OF    THE    N.,    C.    A    ST.    L.    BY. 

The  treasurer  shall  report  daily  tc  the  comptroller  the  receipts  and 
disbursements  of  his  office,  in  or'der  that  thev  may  be  en- 

Daily    reports 

to  accounting  tered  on  the  general  books  of  the  company.  He  shall  also 
and" exports' to  make  a  daily  statement  of  such  receipts  and  disbursements 
president ;  to  the  president,  showing1  the  daily  cash  balance  and  the 

books  open  for 

inspection  of  banks  in  which  it  is  deposited.  His  books  shall,  at  all 
president,  etc.  timeS5  be  open  for  inspection  by  the  president,  finance  com- 
mittee, or  any  member  of  the  board. 

All  checks  shall  be  signed  by  the  treasurer,  or  by  the  assistant  treas- 
Signing  and  urer  when  authorized  by  the  treasurer.  The  treasurer  shall 
of^e'cki^ap?  not  Pav  anv  voucher  that  is  not  properly  approved  for  pay- 
proval  of  ment.  He  shall  attend  to  such  other  duties  connected  with 

vouchers  ; 

other  duties.  the  finances  of  the  company  as  may  be  required  of  him  by 
the  president. 

ASSISTANT   TREASURER. 

The  assistant  treasurer  shall  give  bond  in  the  sum  of  not  less  than 

$25,000,  or  deposit  with  a  safe  depositary,  agreed  on  by  the 
Duties  of  as- 
sistant treas-       parties,  securities  of  that  value  (in  neither  of  which  shall  a 

member  of  the  board  or  officer  of  the  company  be  a  party  or 
interested),  for  the  faithful  performance  of  such  duties  as  may  from 
time  to  time  be  assigned  to  him. 

SECRETARY. 

The  secretary  shall  keep  a  correct  record  of  the  proceedings  of  the 
Duties  of  sec-  board,  give  the  required  notice  to  the  members  of  all  stated 
retary.  and  special  meetings,  attend  the  meetings  of  all  standing  or 

special  committees,  when  required,  and  keep  a  record  of  all  their  pro- 
ceedings. 

Contracts,  He  shall  have  the  custody  of  originals  of  all  contracts, 

agreements,  and  (jee(jg  an(j  agreements,  and  of  other  valuable  papers. 

valuable  papers. 

He  shall  keep  the  stock  and  transfer  books  of  the  corn- 
Stock  transfer     pany,  cancel  old  certificates  at  the  time  of  transfer,  and 
register  all  certificates  of  stock,  and  sign  and  affix  the  seal 
of  the  company  to  the  new  certificates. 

He  shall  see  that  all  certificates  of  stock  are  countersigned  by  the 
Certificates          transfer  agent  and  the  register,  and  that  no  transfers  are 
made  except  on  the  stockholder's  signing  in  person  or  by 
attorney. 

No  transfer  shall  be  allowed  without  the  surrender  of  the  certificate 

Transfer  of  transferred,  and  such  certificate  shall  be  cancelled  and 
stock.  filed 

No  transfer  of  stock  shall  be  made  for  ten  days  next  preceding  any 
meeting  of  the  stockholders,  nor  for  ten  days  prior  to  the  payment  of  a 
dividend. 

He  shall  examine  all  New  York  cancelled  certificates  surrendered  by 
Cancelled  the  register,  and  file  the  same.  He  shall  certify  all  vouch- 

certiflcates.  ers  of  ^he  general  expense  account  that  may  from  time  to 
General  expense  time  be  fully  approved,  and  also  the  general  expense  pay 
account.  rolls.  He  shall  give  notice  of  annual  or  other  general  or 


GENERAL    POWERS   OF    THE    N.,    C.    <fc    ST.    L.    RY.  651 

special  meeting's  of  the  stockholders,  as  required  by  the  charter  and  by- 
laws, and  shall  perform  such  other  duties  as  the  president  or  board  may 
from  time  to  time  assign  to  him. 

The  president  may,  at  his  discretion,  require  the  duties  DutjM  of  «ecre- 
of  the  secretary,  as  herein  defined,  to  be  performed  by  the  UrJ  m»7  •>• 

performed  by 

treasurer.  treasurer. 

TRANSFER  AGENT,  NEW  YORK. 

The  transfer  agent  in  New  York  shall  give  bond  in  the  sum  of  not 

less  than  810,000,  or  deposit  with  a  depositary  agreed  upon 

Duties  of  tram- 
by  the  parties  securities  of  that  value  (in  neither  of  which  fer  agent.  Hew 

shall  a  member  of  the  board  or  officer  of  the  company  be  a  York- 


party  or  interested),  or  any  amount  that  may  be  approved  Bond  O 

by  the  board,  for  the  faithful  performance  and  discharge 

of  his  duties.     He  shall  cancel  all  the  New  York  certificates  presented 

for  transfer,  issue  new  certificates  therefor,  and  counter-  Transfer  of 

sign  and  present  the  same  to  the  registrar  for  countersigna-  ttock- 

ture  and  certificate  of  cancellation  of  prior  certificate.     He  shall  keep 

the  necessary  transfer  books,  which  shall  show  every  transfer,  and  also 

a  ledger  giving  the  name  of  each  stockholder.     He  shall 

make  daily   reports  to  the   secretary  at  Nashville  of  all  fer«  of  (took  to 

transfers  of  stock,  and  at  the  end  of  the  month  report  the  §< 

total  number  of  shares  transferred  during  the  month,  which  must  agree 

with  the  certificates  returned  by  the  registrar.     He  shall  also  perform 

such  other  duties  as  the  president  or  board   may  from  time  to  time 

assign  to  him. 

REGISTRAR  OF   TRANSFERS. 

There  shall  be  appointed  by  the  president,  subject  to  confirmation  by 
the  board  of  directors,  an  incorporated  bank  or  trust  company  in  the 
city  of  Nashville,  and  one  in  the  city  of  New  York,  to  act  as        . 
registrar  of  transfers,  and  no  certificate  of  stock  hereafter  registrar  of 
issued  in  Nashville  shall  be  valid  or  binding  on  this  com-  ***••*•*•• 
pany  unless  registered  and  countersigned  before  issue  by  the  said  regis- 
trar of  transfers  in  Nashville;  and  no  certificate  of  stock  issued  in  New 
York  shall  be  valid  or  binding  on  this  company  unless  reg-  Certificate*  to 
istered  and  countersigned  before  issue  by  the  said  registrar  ijg£edllbefor« 
of  transfers  in  New  York,  and  no  certificate  of  stock  shall  iMU«- 
be  accepted  for  transfer  and  cancellation  unless  so  registered. 

The  registrar  of  transfers  shall  register  and  countersign  no  certificate 
of  stock,  except  such  as  shall  be  presented  for  registry  by  the  transfer 
agent  of  the  company,  duly  countersigned  by  the  latter,  and  unless  ac- 
companied by  a  certificate  or  certificates  for  an  equal  number  of  shares 
duly  canceled. 

The  registrar  of  transfers  in  New  York  shall  also  keep  the  necessary 
registry  books  for  the  registration  of  any  bonds  which  may  ae.iitration 
be  presented  for  that  purpose.  of  »«nds. 


652  BY-LAWS   OF   THE    N.,    C.    &    ST.    L.    RY. 

OPERATING  DEPARTMENT. 

GENERAL    MANAGER. 

The  general  manager  shall,  under  the  supervision  of  the  president, 
have  charge  of  the  operating  department.  He  shall  be  responsible  for 

the  safe  and  economical  working  of  the  roads  committed  to 
Duties  of 
general  his  charge,  and  shall  report,  as  may  be  required  by  the 

president  or  board,  upon  their  condition,  and  make,  from 
time  to  time,  such  suggestions  in  relation  to  the  operations  of  his  de- 
partment as  may  seem  to  be  necessary  to  promote  the  interests  of  the 
company. 

He  shall  have  authority,  with  the  approval  of  the  president,  to  order, 

through  the  supply  department,  machinery  and  tools  for 

MftCuin6ry> 

tools,  and  the  shops;  materials  for  repairs  of  rolling  stock,  machinery 

and  roadway,  and  for  all  other  purposes  connected  with  his 
department. 

All  special  contracts  for  equipment,  machinery,  tools  and  materials 
Special  must  be  sanctioned  by  the  president  or  board,  and  copies 

contracts.  thereof  be  furnished  to  the  supply  department  and  to  the 

comptroller. 

Current  supplies  shall  be  furnished  by  the  supply  department  on  the 
Current  written  requisition  of  the  general  manager,  or  of  such 

supplies.  other  officer  as  may  be  specially  designated  in  writing  by 

him. 

All  accounts  contracted  prior  to  the  first  day  of  each  month  shall  be 
Payment  prepared  for  payment  on  proper  vouchers  and  sent  to  the 

vouchers.  auditor  of  disbursements,  who  shall  examine  the  correct- 

ness of  the  same,  see  that  the  account  charged  is  the  proper  one,  audit 
and  affix  his  signature  thereto  and  submit  them  to  the  president  for 
approval,  and  have  them  ready  for  payment  on  the  15th  of  the  succeed- 
ing month. 

The  general  manager  shall,  with  the  approval  of  the  president,  ap- 

Staff  officers         point  a  chief  engineer,  a  superintendent  of  machinery,  and 

of  the  general 

manager.  a  superintendent  of  transportation,  to  assist  him;  he  shall 

also  appoint,  with  the  approval  of  the  president,  superintendents  of  the 
various  divisions  of  the  system. 

He  shall  also  prepare  rules  denning  the  duties,  in  detail,  of  all  sub- 
Rules  of  his  ordinate  officers  and  agents  in  his  department,  which, 
department.  when  approved  by  the  president,  shall  be  strictly  enforced ; 
and  shall  perform  such  other  duties  as  the  president  may  from  time  to 
time  assign  to  him. 

All  books  or  papers  in  the  possession  of  the  general  manager,  or  of 
Books  and  any  officer  or  agent  in  his  department,  shall  be  open  to  the 

^officers6"  inspection  of  the  president  or  any  member  of  the  board,  or 
inspectors,  etc.  such  expert  as  they  may  authorize  and  appoint. 

In  case  of  accident  upon  any  of  the  roads  under  his  charge,  the  gen- 
eral manager  shall  immediately  report  the  facts  to  the  president,  and, 

as  soon  as  possible,  institute  a  thorough  investigation  into 
Accidents. 

the  causes  which  led  to  it,  and  communicate  in  writing  the 


GENERAL    POWERS    OF   THE    N.,    C.    4    ST.    L.     RY.  653 

result,  together  with  his  views  and  action  upon  the  case,  to  the  presi- 
dent for  the  information  of  the  board.  The  general  manager  shall  keep 
the  president  fully  advised  of  all  occurrences  and  transactions  of  im- 
portance connected  with  his  department. 

CHIEF   ENGINEER. 

The  chief  engineer  shall  act  as  assistant  to  the  general  manager  in  all 
matters  connected  with  maintenance  of  way,  bridges,  and  Duties  of  chief 
buildings,  and  shall  have  the  direction  of  any  construction  •»*"*«>•«• 
work  that  may  be  placed  in  his  charge.     He  shall  prepare  Engineer  of 

plans  and  estimates  for  the  construction  or  repair  of  all  •>"«*••  »n<1 

other   struct- 

bridges  necessary  to  be  constructed  or  repaired,  and  shall  ures. 
prepare  plans  and  specifications  and  estimates  for  other  structures  that 
may  be  required;  and  it  shall  be  his  duty  to  make  periodi-  Report*  to  §en- 
cal  examination  of  all  of  the  bridges  and  of  the  track,  on  *ra*  •>»*•*•*• 
the  several  roads,  and  report  upon  their  condition  to  the  general  man- 
Ijper. 

SUPERINTENDENT   OF   MACHINERY. 

The  superintendent  of  machinery  shall  act  as  assistant  to  the  general 
manager  in  matters  pertaining  to  the  mechanical  department.  He  shall 
have  general  supervision  and  control  over  all  the  rolling  Duties  of  super- 

,    mtendent  of 

stock,  shops,   tools,  etc.,  and  shall  furnish    copies  of  all  machinery. 
standard  drawings  that  may  be  required  for  work  in  the  mechanical  de- 
partment, and  give  such  instructions  as  will  insure  uniformity  in  the 
construction  and  repair  of  all  the  company's   rolling  stock   and   ma- 
chinery. 

He  shall  keep  a  complete  record  of  the  numbers  and  condition  of  all 

the  locomotives,  cars,   and  machinery  owned  by  the  com-  Record  of  roll- 
ing  stock     and 
pany,  whether  upon  its  own  road  or  upon  lines  leased  or  equipment. 

otherwise  controlled. 

He  shall  keep  in  his  office  a  record  of  all  patents  owned  or  purchased, 
and   shall  see  that  all  officers  are  properly  informed  con-  Record  of 
cerning  the  rights  of  the  company  therein,  and  perform  P***01*- 
such  other  duties  as  may  be  assigned  to  him  by  the  general  manager. 

In  the  performance  of  these  general  duties,  he  shall  visit  the  shops  of 
the  company  from  time  to  time,  and  issue  such  instructions  as  he  may 
deem  necessary  for  the  efficiency  and  economy  of  the  service. 

SUPERINTENDENT  OF   TRANSPORTATION. 

The  superintendent  of  transportation  shall  represent  the  general 
manager  in  the  transportation  department.  He  shall  have  charge  of 
the  distribution  of  the  car  equipment.  It  shall  be  his  duty 

Duties  of  super- 

to  see  that  the  cars  are  moved  promptly,  so  that  they  may  intendent  of 
be  made  to  perform  the  fullest  service  possible. 

Ele  shall  consult  freely  with  the  traffic  officers,  so  that  they  shall  be, 
as  far  as  possible,  advised  as  to  the  supply  of  and  demand  for  trans- 
portation to  move  the  company's  traffic,  governed  by  its  apparent  neces- 
sity, in  order  to  properly  protect  and  promote  the  company's  interest. 


654  BY-LAWS   OF    THE    N.,    O.    &    ST.    L.    RY. 

He  shall  keep  a  record  of  all  of  the  cars  belonging  to  this  company, 

and  a  record  of  the  movements  of  all  cars  on  the  company's 

inVstock  and      liQes,  and  an  account  of  the  amounts  that  may  become  due 

increment  of       to  it  for  the  use  of  its  cars  on  foreign  roads,  and  of  the 

cars  i 

amount  due  to  foreign  roads  for  use  of  their  cars  on  the 

onload.6*1*        roads  of  this  company,  and  he  shall  make  a  monthly  report 
of  the  same  to  the  auditor  of  receipts,  who  will  make  set- 
tlement of  such  accounts. 

He  shall  also  have  charge  of  the  telegraphic  service  of  the  company, 
Telegraphic  under  such  rules  and  regulations  as  may  be  adopted  for  his 
service.  guidance,  and  perform  siich  other  duties  as  may  be  as- 

signed to  him  by  the  general  manager. 

DIVISIONS. 

The  roads  owned,  leased,  operated,  and  controlled  by  the  company 
shall  be  in  five  divisions,  each  of  which  shall  be  in  charge  of  a  division 
superintendent,  as  follows: 

Nashville  1-    The   Nashville    Division,'  including    the    lines    from 

Division.  Hickman    to    Nashville,    Dickson    to    Mannie,   and    West 

Nashville  Branch. 

2.  The  Chattanooga  Division  including  the  lines,  Nashville  to  Chat- 
Chattanooga        tanooga,  Nashville  to  Lebanon,   Wartrace   to  Shelby ville, 
Division.  Cowan  to  Tracy  City,  and  Bridgeport  to  Pikeville. 

3.  The   Western  &  Atlantic   Railroad   and   the  Rome   Railroad,    ex- 
Atlanta  tending   from   Chattanooga   to   Atlanta   and    Kingston   to 
Division.  Rome. 

Paducah  and  4.  The  Paducah  and    Memphis   Division,    including   the 

Memphis Div.      lines  from  Paducah  to  Memphis  and  Lexington  to  Perry  - 
ville. 

5.  The  Huntsville  Division,  including  the  lines  from  Decherd  to 
Huntsville  Gadsden,  Elora  to  Columbia,  Fayetteville  to  Jeff,  and  Tulla- 
Division.  homa  to  Bon  Air. 

DIVISION    SUPERINTENDENTS. 

Superintendents  shall,  on  their  respective  divisions,  ex- 
Duties  of 

division  su-  ercise  all  the  powers  of  the  general  manager  which  may 
permtendents.  ^e  necessarv  for  the  proper  management  of  their  divisions. 
They  shall  be  responsible  to  the  general  manager  for  the  maintenance 
of  the  roadway  and  buildings,  and  for  the  proper  movement  of  cars 
and  trains,  and  the  economical  administration  of  the  business  of  their 
divisions.  They  shall,  with  the  approval  of  the  general  manager, 
appoint  suitable  persons  for  the  various  subordinate  offices  in  the  oper- 
ating department,  including  station  agents. 

TRAFFIC  DEPARTMENT. 

TRAFFIC   MANAGER. 

The  traffic  manager,  under  the  supervision  of  the  president,  shall 
have  direct  charge  of  all  the  traffic  of  the  company,  freight,  passenger 
mail,  and  express.  He  shall,  subject  to  the  approval  of  the  president, 


GENERAL    POWERS    OF    THE    N.,    C.    A    ST.    L.    RY.  655 

make  all  rates,  arrangements,  and  contracts  for  such  traffic  over  the 
lines  operated   by   the   company,    and   shall  conduct  the 

Duties  of 

necessary  negotiations  with  individuals,  corporations,  and  traffic 
connecting  or  competing  companies,    in  relation   thereto.  m*nm*er- 
He  shall,  subject  to  the  approval  of  the  president,  appoint  a  general 
freight  agent  and  a  general  passenger  agent  to  assist  him. 

GENERAL   FBBIGHT  AGENT. 

The  general  freight  agent  shall  act  under  the  direction  of  the  traffic 
manager.    He  shall  be  charged  with  the  duty  of  procuring  freight  traffic, 
and  of  properly  assessing  the  rates  fixed  for  the  transpor- 
tation thereof,  and  shall  instruct  the  freight  agents,  solicit-  general 
ing  agents,  and  station  agents  in  all  matters  pertaining  to  *rei*ht  a«ent> 
the  soliciting,  receiving,  forwarding,  and  delivery  of  freight. 

He  shall  also  examine  all  claims  pertaining  to  the  freight  service,  and 
make  vouchers  certifying  thereto,  for  such  as  are  found  valid,  Qiaimi  for  JOM 
and  transmit  them  to  the  traffic  manager,  who,  if  approving,  *»d  damage, 
shall  indorse  such  approval  thereon,  and  transmit  them  to  the  auditor  of 
disbursements. 

ASSISTANT   GENERAL    FREIGHT    AGENT. 

The  general  freight  agent  may  be  aided  by  an  assistant  general  freight 
agent,  who  shall  act  for  the  general  freight  agent  in  his  ab-  Dutiet  of 
sence,  and  perform  such  duties  as  may  be  assigned  to  him  ^"""freight 
by  the  general  freight  agent.  agent. 

DIVISION    FREIGHT  AGENT. 

The  general  freight  agent  may  be  assisted  also  by  a  division  freight 
agent  of  the  Western  &  Atlantic  Railroad,  whose  office  shall  be  at  At- 
lanta, Cta.,  and  who  shall,  under  the   direction  of  the  general  freight 
agent,  be  specially  charged  with  the   dnty   of  procuring 
freights  for,  and  making  local  rates  on,  his  division.     With  division 
this  object  in  view,  he  shall  spend  as  much  time  as  practi-  frel*ht  *Rent- 
cable  on  the  division  under  his  charge  for  the  purpose  of  familiarizing 
himself  with  the  requirements  of  the  agricultural,  manufacturing,  and 
commercial  industries  along  such  division,  and  adjacent  thereto,  and 
shall  consult  with  the  division  superintendent  and  other  local  officers  in 
regard  to  all  matters  connected  with  the  development  of  the  local  freight 
traffic  of  the  road. 

GENERAL   PASSENGER   AGENT. 

The  general  passenger  agent  shall  act  under  the  direction  of  the  traffic 
manager.     He  shall  be  charged  with  making  arrangements  Duties  of  g*n- 
and  rates  for  the  passenger  traffic  over  the  lines  owned  and  J^nt'palif" 
operated  by  the  company,  and  shall  also,  with  the  approval  »•'  traffic, 
of  the  traffic  manager,  make  all  necessary  negotiations  and  arrange- 
ments with  other  railroad  companies  in  relation  thereto.     The  printing 
and  distribution  of  all  tickets  and  passenger  advertising  matter  shall  be 
entrusted  to  his  charge.     He  shall  be  aided  by  an  assistant  AmtiiUBt 
general  passenger  agent,  who  shall  perform  such  duties  as  general  pai- 
may  be  assigned  to  him  by  the  general  passenger  agent, 
and  who  shall  act  for  him  in  his  absence. 


656  BY-LAWS   OF    THE    N.,    C.    &    ST.    L.    RY. 

He  shall,  subject  to  the  approval  of  the  traffic  manager,  employer 
authorize  the  employment  of  all  the  necessary  agents  for 

Employment    of  . 

•eliciting agent*  the  soliciting  and  procuring  of  passenger  traffic,  and  all 

and  clerks.        necessary  clerical  force  to  properly  transact  the  business  of 
his  department. 

All  rates  for  the  transportation  of  passengers  shall,  under  the  author- 
Fassenger  ity  °f  the  president,  be  made  by  the  traffic  manager  orgen- 

rates-  eral  passenger  agent,  and  notice  of  the  same  shall  be  fur- 

nished to  the  auditor  of  receipts  as  soon  as  fixed. 

GENERAL  PASSENGER  AGENT,  WESTERN  &  ATLANTIC  RAILROAD. 

The  general  passenger  agent  shall  also  be  aided  by  a  general  passen- 
ger agent  of  the  Western  &  Atlantic  Railroad,  with  office  at 


ger  agent,  w.  &  Atlanta,  Ga.,  who  shall  perform  such  duties  in  connection 
A. 


General  passen- 
r  agent,  W.  & 

with  the  passenger  business  of  the  company  as  may  from 
time  to  time  be  assigned  to  him. 

GENERAL  BAGGAGE  AGENT. 

The  general  baggage  agent  shall  be  under  the  supervision  of  the  gen- 
eral passenger  agent,  and  shall  be  charged  with  making 
Duties  of  gen-  .    . 

eral  baggage       arrangements  and  rates  for  receiving,  checking,  and  billing 

agent-  baggage,  and  shall  examine  all  claims  for  loss  of  or  dam- 

age to  baggage. 

SUPPLY  DEPARTMENT. 

PURCHASING    AGENT. 

Duties  of  pur-  The  purchasing  agent  shall  purchase  all  articles  for  use 

chasing  agent.  jn  everv  department  of  the  company,  under  such  general 
directions  as  the  president  may  from  time  to  time  give,  but  only  on  the 
written  requisition  of  an  officer  duly  authorized  to  make  the  same. 

All  purchases  for  use  in  the  operating  department  shall  be  made  on 

the  written  requisition  of  the  general  manager,   or   such 
Purchases  for  ^ 

transportation  other  officer  in  said  department  as  he  may  authorize,  in  writ- 
department,  ing;  all  purchases  for  use  in  other  departments  shall  be  made 
on  the  written  requisition  of  such  officer  as  the  president  may,  in  writing, 
designate. 

The  purchasing  agent  shall  negotiate  the  sale  of  old  property  and 

material  belonging  to  the  company.     In  order  that  he  may 

property  and       be  fully  advised  as  to  the  material  it  is  deemed  advisable  to 

dispose  of,  the  general  manager  shall  cause  to  be  made  to 

him  each  month  a  complete  report  of  same.     He  shall  report  all  sales  of 

such  property  and  material  to  the  comptroller  for  proper  entry  in  the 

company's  books. 

Accounts  shall  be  opened  by  the  accounting  department  for  each 
Accounts  to  be     division  under  the  following  heads: 
couStfng°d""  store  Stock— Stores  and  supplies  carried  in  stock, 

partment.  Stationery  Stock — Stationery  carried  in  stock. 

Shop  Stock — All  stores,  supplies,  and  material  for  shops. 

Road  Stock — Rails,  fastenings,  ties,  ballast,  and  lumber. 


GENERAL    POWERS   OF   THE    N.,    C.    <t    8T.    L.    RV.  '->7 

Fuel  Stock — Coal  and  wood. 

To  which  shall  be  charged  all  purchases  made  on  account  thereof, 
from  vouchers  properly  approved  by  the  purchasing  agent  and  counter- 
signed  by  the  auditor  of  disbursements,  and,  when  approved  by  the 
president,  shall  be  returned  for  payment  at  the  time  specified  for  other 
disbursements. 

The  details  of  accounts  between  the  purchasing  agent  and  the  oper- 
ating and  other  departments  of  the  company  for  supplies  Account*  b»- 
furnished  them,  shall  be  kept  and  returns  made  thereof  at  tween  purch**- 
such  times  and  in  such  manner  as  the  comptroller  shall  di-  different  de- 
rect.  partment*. 

The  purchasing  agent  shall  have  authority  to  employ,  subject  to  the 
approval  of  the  president,  such  clerks  to  aid  him  in  the  du-  Nomination  of 
ties  of  the  office  as  a  proper  economy  may  require,  for  the  clerk*, 
faithful  performance  of  whose  duties  he  shall  be  responsible  to  the  com- 
pany. 

He  shall  be  aided  by  a  general  storekeeper,  who  shall  perform  such 
duties  as  may  be  assigned  to  him  by  the  purchasing  agent,        . 
and  who  shall  act  for  him  in  his  absence.     He  shall  act  general 
under  the  supervision  of  the  president.  «torekeeper. 

ACCOUNTING  DEPARTMENT. 

COMPTROLLER. 

The  comptroller  shall  have  the  direct  charge  of  all  the  books  and 
accounts  of  the  company,  and  shall  see  and  know  that  the  Duties  of 
system  for  keeping  the  same  is  fully  enforced  and  main-  comptroller, 
taiaed. 

No  change  shall  be  made  in  the  forms  and  blanks  relating  to  receipts 
and  disbursements  now  in  use  on  the  several  divisions  of  _ 

Forms  and 

the  company's  lines,  without  the  written  consent  of  the  blank*  to  be 
comptroller. 

He  shall  appoint,  with  the  approval  of  the  president,  all  the  officers 
and  their  assistants  in  his  department,  and  it  shall  be  his  duty  to  know 
that  all  bonds  required  by  the  regulations  of  the  company  B0nd*  of  officer* 
are  given.  All  bonds  for  the  faithful  performance  of  the  and  employe*, 
duties  of  officers,  agents,  and  employes  shall,  upon  approval  of  the 
general  counsel,  be  transmitted  to  the  custody  of  the  comptroller. 

He  shall  be  aided  by  an  assistant  comptroller,  who  shall 

Duties  of 

perform  such  duties  as  may  be  assigned   to  him   by  the  a**i*tant 
comptroller,  and  shall  act  for  him  in  his  absence. 

The  comptroller  shall  also  be  aided  by  an  auditor  of  receipts  and  an 
auditor  of  disbursements. 

AUDITOR  OF   RECEIPTS. 

The  auditor  of  receipts  shall  have  immediate  charge  of  all  accounts 
relating  to  earnings  of  the  company.     He  shall  report  to  Dutie*  of 
the  comptroller  all  deviations  from  the  system  of  accounts  auditor  of 
prescribed  for  the  agents  in  the  employ  of  the  company. 
42 


658  BY-LAWS   OF   THE    N. ,    C.    &    ST.    L.    RY. 

Examination       He  shall,  under  the  supervision  of  the  comptroller,  cause 
accounts.  an  examination  of  the  accounts  of  agents  to  be  made  as 

Assistant  often  as  may  be  necessary.     He  shall  be  aided  by  an  as- 

receVptf0  sistant  auditor  of  receipts,  who  shall  act  for  him  in  his 

absence,  and  perform  such  duties  as  may  be  assigned  him. 

AUDITOR  OF   DISBURSEMENTS. 

The   auditor  of    disbursements  shall    have    immediate 

Duties  of 

auditor  of  dis-  charge  of  all  accounts  relating  to  disbursements  of  the 
nts'  company.  It  shall  be  his  duty  to  examine  all  pay  rolls  and 
Examination  vouchers  before  payment,  and  see  that  they  are  returned 
toucher's0™1  °*  in  due  form>  and  that  the  same  are  distributed  to  their 
Auditing  bills  proper  accounts.  He  shall  not  audit  any  bill  or  claim  unless 
and  claims.  jt  be  approved  by  the  proper  officer. 

All  vouchers  of  every  nature  shall  be  countersigned  by  him  or  by  the 
assistant  auditor  of  disbursements  before  being  paid.     He 
system  of  shall  report  to  the  comptroller  all  deviations  from  the  sys- 

tem of  accounts  prescribed  for  the  disbursements  of  the 
auditor  "of  dis-  company.  He  shall  be  aided  by  an  assistant  auditor  of  dis- 
bursements, bursements,  who  shall  act  for  him  in  his  absence,  and  per- 
form such  duties  as  may  be  assigned  him. 

The  expenses  incident  to  conducting  the  business  of  the  company 

shall  be  kept  under  the  following  general  heads,  and  shall 
Heads  under  ,  -••  -j  j  i  •  .. 

which  expenses  be  subdivided  respectively  into  accounts  as  required  by  the 

shall  be  kept.       regulations  prescribed  by  the  comptroller,   subject  to  the 
approval  of  the  president  or  board  of  directors,  viz.: 

Maintenance  of  way. 

Maintenance  of  equipment. 

Conducting  transportation. 

General  expenses. 

Construction. 

All  cases  of  defalcation,  or  any  want  of  promptness  or  obedience  in 

carrying  out  instructions  on  the  part  of  any  officer  or  agent 

Reports  of  de-      jn  making  his  returns  to  this  department,   or  otherwise, 

falcation,    want 

of  promptness,     shall  be  immediately  reported  by  the  proper  auditor  to  the 

troiierl comp        comptroller,  and  such  steps  shall  be  taken  as  he  may  order, 

or  the  necessity  of  the  case  may  seem  to  require,  and  if  the 

delinquent  be  under  bond  to  the  company,  his  sureties  shall  be  informed 

through  the  comptroller  of  the  known  facts   in  the  case 
Reports  of  de- 
falcations to        so  far  as  they  are  interested.     All  defalcations  shall  at  the 

president.  same  time  be  reported  by  the  comptroller  to  the  president, 

and  to  the  head  of  the  department  with  which  the  defaulter  is  con- 
nected. 

Comptroller's  The  comptroller  shall  keep  in  his  office  a  set  of  books 

book  of  record,  containing  a  complete  record  of  all  the  business  transactions 

Treasurer's  of   the  company.      A  daily  report  shall  be  made    by  the 

accounting  de°-  treasurer  to  this  department  of  all  receipts  and  disburse- 

partment.  ments,  in  order  that  proper  entries  may  be  made. 


GENERAL    POWERS   OF    THE    N.,    C.    4    ST.    L.    RY.  659 

The  treasurer  and  comptroller  shall  verify  the  cash  balance,  as  per 
the  general  ledger,  at  least  once  in  each  month,  by  compar-  verification  of 
ing  the  same  with  the  cash  balance  on  hand  and  in  the  diff-  ea*h  balance, 
erent  depositaries  where  the  funds  of  the  company  are  kept. 

The  comptroller  shall  furnish  the  president,  for  the  information  of 
the  board,  as  early  as  possible,  with  a  detailed  statement  of  Comptroller's 
the  receipts  and  disbursements  of  the  company  for  the  pre- 
vious  month.  •  dent- 

He  shall  also  render  statements  of  the  cash  securities  on  hand  to  the 
finance  committee,  which  committee  shall  verify  the  correctness  of  the 
same. 

He  shall,  as*  early  as  practicable  after  the  expiration  of  the  fiscal 
year,  present  to  the  president  a  complete  statement  of  the  ^,,nuai  report 
accounts  for  the  year,  from  which  statement  an  annual  re-  to  president. 
port  shall  be  made  to  the  stockholders,  to  be  signed  by  the  president. 

LAW  DEPARTMENT. 

GENERAL    COUNSEL. 

The  general  counsel  shall  have  control  of  the  legal  business  of  the 
company,  and  shall  keep  himself  advised  of  the  character  Duties  of  gen- 
and   progress  of    legal   proceedings    and    claims    by   and  "J1  proceedinM 
against  the  company,  or  in  which  it  is  interested,  and  keep  and  claim* 
in  his  office  books  in  which  shall  be  entered  all  suits  or  ac-  pany. 
tions  of  every  nature  in  which  the  company  may  be  a  party  or  inter- 
ested, with  sufficient  data  to  show  the  nature  of  the  case  and  the  pro- 
ceedings therein.     Such  books  shall  be  open  at  all  times  to  Book*  of  record. 
the  inspection  of  the  directors  and  president.     He  shall  prepare  opinions 
on  any  subject  that  may  be  referred  to  him  by  the  president  or  board, 
supervise  the  preparation  of  all  contracts  to  be  executed  by  preparatjon  Of 
the  company  when  referred  to  him  for  that  purpose,  and  contract*, 
perform  such  other  duties  as  may  be  assigned  to  him.     All  bonds  to  be 

executed  by  the  company  shall  be  submitted  to  and  ap-  Bond*  to  be  exe- 

,  ,       / .  .  ..  cuted  by  corn- 

proved  by  him  before  execution.  pany. 

He  shall  represent  the  company,  or  see  that  it  is  represented  by  local 
attorneys,   in  all  legal  proceedings  by   or  against  it,   or  protectjon  Of 
affecting  its  interest,  and  he  shall,   whenever  advised  of  company  in 

case  of  acci- 

any  accident,  claim  or  liability,  take,  or  cause  to  be  taken,  dent  claim,  or 
immediate  measures  to  investigate  the  facts,  and  ascertain  h*blht>'- 
the  legal  position  of  the  company,  and  shall  in  each  case  promptly  do 
what  may  be  required  for  the  protection  of  the  interests  of  the  company. 

He  shall  also  examine  and  adjust  all  assessments  and  A**et*menu, 
correct  and  adjust  all  bills  for  taxes.  taxe*,«tc. 

He  shall  also  examine  all  bonds  of  agents  and  other  officers  and  em- 
ployes, and  agreements  for  sidings,  etc.,  that  may  be  re-  Bond* of 
ferred  to  him  for  that  purpose  by  any  officer  of  the  com-  *««nU- 
pany. 

He  shall  have  charge  of  all  conveyances,  examination  and  perfection 


660  BY-LAWS   OF    THE    N.,    C.    &    ST.    L.    RY. 

of  titles  to  the  company's  property  and  preparation  of  all  other  papers 
Preparation  necessary  in  conducting  the  legal  business  of  the  company, 
and  execution  All  deeds,  mortgages,  leases,  releases  and  documents  re- 
bonds,  releases,  lating  to  real  estate,  official  bonds,  and  all  bonds  required 
gages';  d£cu-'  bjr  the  reg"lations  to  be  jfiven  by  officers,  employes,  and 
ments,  bonds  others,  shall  be  prepared  and  executed  under  the  direction 
and  employes,  of  the  general  counsel,  and  all  such  documents,  certified 
proceedings  of  condemnation,  contracts,  and  other  docu- 
ments, relating  to  real  estate,  abstracts  of  title,  and  certificates  of 
search,  shall,  when  executed,  and  recorded,  be  forwarded  to  him  for 
examination  before  being  filed  among  the  records  of  the  company. 

He  shall  have  power  to  appoint  local  attorneys  in  the  several  counties 

through  which  the  company's  lines  of  road  run.  or  in  such 
Appointment  . 

of  local  attor-      groups  of  counties  as  he  may  deem  best,  with  power  to 

euT'forTaw'  assign  any  local  attorney  to  special  duties  in  a  county  other 
department.  than  that  in  which  he  is  regularly  appointed;  and  he  shall 
.  have  power  to  employ  a  sufficient  number  of  clerks  for  the  execution  of 
the  clerical  duties  of  the  law  department,  and.  with  the  approval  of  the 
^president,  such  agents  for  special  duties  as  he  may  deem  necessary. 

Upon  the  recommendation  of  the  local  attorney,  acquainted  with  the 

facts,  stating  in  writing  his  reasons  for  the  recommenda- 
Adjustment  of  ,,111 

claims  by  gen-     tion,  the  general  counsel  shall  have  power  to  adjust  and 

eral  counsel.  compromise  all  claims  against  the  company  for  damages 
growing  out  of  the  operation  of  its  road,  either  before  or  after  litigation 
has  commenced. 

ASSISTANT   GENERAL   COUNSEL. 

The  general  counsel  may,  with  the  approval  of  the  president,  ap- 
point an  assistant  general  counsel,  who  shall  act  as  aid  to  the  general 
Assistant  een-  counsel,  and  such  duties  as  are  herein  assigned,  and  powers 
eral  counsel.  given  to,  the  general  counsel  may  also  be  performed  and 
exercised  by  the  assistant  general  counsel. 

DIVISION   COUNSEL   W.    &   A.    B.    B. 

The  general  counsel  shall,  with  the  approval  of  the  president,  appoint 
division  counsel  for  the  Western  &  Atlantic  Railroad,  and  such  duties 

as  are   herein  assigned,  and  powers  given  to,  the  general 
Division  coun- 
sel W.  &  A.          counsel,  may  be  performed  and  exercised  by  the  division 

counsel  in  the  State  of  Georgia,  under  the  direction  of  the 
general  counsel. 

LOCAL    ATTORNEYS. 

The  local  attorneys  shall  attend  to  all  such  legal  busines  of  the  com- 
pany as  may  be  assigned  them  by  the  general  counsel.  They  shall 
promptly  report  to  him  all  legal  proceedings  in  which  the  company  is 
Duties  of  interested,  stating  the  nature  of  the  claim,  and  the  defense 

local  attorneys,  thereto,  and  shall,  from  time  to  time,  advise  him  of  all  pro- 
ceedings connected  therewith.  They  shall  also  report  to  him  every 
transaction  of  importance  connected  with  the  legal  business  and  affect- 
ing the  interests  of  the  company  in  their  respective  districts. 


GENERAL    POWERS   OF   THE    N.,    C.    A   ST.    L.    RY.  661 

APPROVAL  OF  LAW   DEPARTMENT  VOUCHERS. 

All  vouchers  for  disbursements  growing  out  of  the  law  department 
shall  be  approved  by  the  local  attorney  in  whose  district  Appro**!  of 

.    .  law  department 

they  may  originate,  and  by  the  general  counsel.  voucher*. 

Bills  for  judgment,  court  costs,  and  attendance  of  witnesses  shall  be 
certified  by  the  local  attorney  in  charge  of  the  cases  in  Vouchers  for 
which  they  shall  be  incurred,  and  forwarded  to  the  general  Jj'l^'  j^JJ? 
counsel,  who,  or  the  assistant  general  counsel,  will  approve  nienu,  etc. 
and  forward  them  to  the  auditor  of  disbursements. 

REAL  ESTATE  DEPARTMENT. 

REAL   ESTATE  AGENT. 

The  real  estate  agent  shall,  subject  to  the  supervision  of  the  pres- 
ident, have  control  of  the   real  estate  belonging  to   the 

***_»«.  .    j         .  ,.  •    •       i  j   Duties  of  real 

company.     He  shall  have  custody  of  the  original  maps  and  estate  agent. 

profiles  of  the  road,  and  plans  of  the  real  estate  owned  or  M       proflles 
held  by  this  company  and  by  the  companies  the  roads  of  descriptive  list* 

of  property, 

which   are   leased   and  controlled  by   this  company.     He  and  real  estate 
shall  prepare  and  keep  in  his  office,  for  the  inspection  of  recordt> 
the  proper  officers,  or  any  member  of  the  board,  descriptive  lists  of  all 
real  estate  owned  by  this  company  and  by  companies  whose  roads  are 
leased  and  controlled   by  this  company;    and  also  statements  of  the 
revenues  received  therefrom. 

He  shall  examine,  approve,  and  submit  to  the  general  counsel  for 
approval,   all  conveyances  and  leases  of  real  estate  (to,  „ 

Conveyances 

from,  or  by  this  company)  before  the  same  are  executed,  and  leases  of 
and  shall  record  them  in  his  office  before  depositing  them  r**1  eiUUi 
with  the  secretary.     Under  the  advice  of  the  general  counsel,  or  assist- 
ant general  counsel,  he  shall  value  and  give  lists  of  the  _ 

Taxation  lists, 
company  s  property  which  may  be  subject  to  taxation,  to 

the  proper  officers,  assessors,  or  boards  of  assessors,  by  whatever  name 
designated,  of  the  several  states  in  which  the  property  may  be  situated. 

He  shall  examine  all  assessments  of  real  estate  for  tax-  Assessments 
ation.  and  shall  scrutinize  and  approve  all  tax  bills  before  *nd  u*  blUti 
submitting  them  to  the  general  counsel.     He  shall  act  in  concert  with 
the  general  counsel  and  local  attorneys  in  securing  proper  valuations. 

He  shall  approve,  before  pavment,  all  bills  due  for  rent 

Bills  for  rent 
of  property  leased  to  the  company,  and  notify  the  corap-  of  property 

troller  of  all  rents  upon  property  owned  bv  the  company, 
and  keep  a  record  of  the  same. 

He  shall  furnish  to  the  other  departments  of  the  company's  service 
such   abstracts  or  copies  of  papers  and    plans,  and  such  Abstracts  and 
other  information  relating  to  real  estate  as  may  from  time  °°PiM  of  p»p«»- 
to  time  be  required  for  the  proper  conduct  of  the  business  of  the  com- 
pany; and  report  to  the  general  manager  all  persons  who 
are  in  arrears  for  rent  of  company's  property;  and  perform 
such  other  duties  as  the  president  or  board  may  from  time  to  time  assign 
to  him. 


662  BY-LAWS   OF   THE    N.,    C.    &    ST.    L.    RY. 

The  president  may,  at  his  discretion,  require  the  duties  of  the  real 
mayfpMforaer  estate  agent,  as  herein  defined,  to  be  performed  by  the 
duties  of  real  chief  engineer. 

estate  agent. 

GENERAL  REGULATIONS. 

1.  All  the  officers  named  in  this  organization,  except  those  otherwise 
Mode  of  appoint-  provided  for,  shall  be  nominated  to  the  president  for  his  ap- 
ing officers,          proval,  by  the  heads  of   the  departments  in  which  they 
are  to  serve. 

2.  The  station  agents  of  the  company  shall  be  subject  to  the  super- 
Reeulations        vision  and  direction  of  the  general  manager,  whose  regula- 

governing  tions  shall   be   enforced   through   the   respective   superin- 

freight,  ticket, 

and  station  tendents.  Those  whose  compensation  consists  of  a  nxed 
agents.  salary  shall  devote  their  whole  time  and  attention  to  the 

interests  of  the  company,  unless  expressly  exempted  therefrom  by  the 
president  or  general  manager.  They  shall  take  charge  of  the  property 
of  the  company  at  their  stations,  and  perform  such  other  duties  con- 
nected with  the  business  of  the  company  as  may  be  prescribed  for  them 
not  inconsistent  with  a  proper  discharge  of  their  duties  as  agents. 

3.  All  officers,  agents,  conductors,  and  other  employes  of  the  company 

who  may,  by  virtue  of  their  office,  or  in  the  performance  of 
Accounts  and  . 

reports  of  their  duty,  receive  money  on  account  of  the  company,  shall, 

when  required,  give  bond  for  the  faithful  discharge  of  their 
duties,  in  such  sums  as  shall  be  designated  by  the  president. 

4.  Any  person  making  application  for  the  issuance  of  duplicate  checks, 
vouchers,  or  other  obligations  of  the  company,  in  lieu  of  the  originals 
Bonds  for  dupli-  alleged  to  De  l°st.  stolen,  or  destroyed,  shall  give  bond,  with 

cated  checks,       security,  in  double  the  amount  or  value  involved,  to  indem- 

vouchers,  or 

obligations  of      nify  the  company  against  the  presentation  or  use  of  the 

ompany.  originals,  but  no  duplicate  shall  be  issued  unless  authorized 
by  the  president;  and  all  applications  for  such  duplicates  shall  be  made 
in  writing,  describing  the  document,  and  be  signed  and  sworn  to  by  the 
applicant. 

5.  All  bonds  to  secure  the  company  against  loss  by  reason  of  the  im- 
proper acts,  frauds,  or  other  violation  of  duty  on  the  part  of  any  officer 

or  agent  of  the  company,  from  whom  it  requires  bond,  shall 
Bonds  to  se-  J 

cure  company      be  given  by  some  guarantee  or  incorporated  company,  said 

lent  acts  oYoffi-  company  to  be  approved  by  the  board,  or  personal  bonds 
cers  or  em-  with  good  and  sufficient  sureties  may  be  accepted  at  the 
option  of  the  board.  In  case  the  guarantee  or  incorporated 
company  does  not  issue  bonds  in  the  amount  required,  then,  for  the  ad- 
ditional amount  of  the  bond  required,  said  officer  or  agent  shall  give  his 
Personal  bonds  personal  bond,  with  two  or  more  sureties,  who  shall  be 
securities,  etc.  owners  of  property  aggregating  in  value,  without  encum- 
brance, the  amount  of  the  bond,  or  for  such  additional  amount  give  se- 
curity in  the  form  of  mortgage  on  real  estate,  or  deposit  of  bonds  or 
stocks,  subject  to  the  approval  of  the  board. 

6.  It  shall  be  the  duty  of  the  officer  appointing  officers,  agents,  con- 


GENERAL    POWERS   OF    THE    N. ,    C.    A    ST.    L.    RY.  663 

due  tors,  or  other  employes,  who  are  required  to  give  bond,  Dutjet  Of  ao- 
to  immediately  notify  the  comptroller,  through  the  proper  pointing  officer* 
channel,  and  give  such  information  as  will  enable  him  to  requirinr°to 
have  the  necessary  bond  prepared.  **Te  bon 

7.  All  payments  to  the  regular  employes  of  the  company  shall  be  by 
pay  roll,  to  which  the  signatures  of  the  payees  must  be  at-  payBienUto 

tached  in  all  cases  where  they  remain  in  service  until  the  regular  em- 
ployes by  pay 
day  of  payment.     The  crosses  or  marks  of  those  who  are  roll ;  witness  to 

incapable  of  writing  their  names  must  be  duly  witnessed.       •I*n*( 

8.  For  purchases  made  by  the  purchasing  agent,  and  for  all  expenses 
other  than  those  contracted  for  labor  or  services,  vouchers  shall  be  pre- 
pared and  approved  by  the  heads  of  the  departments  by  Preparation  of 
whose  direction  such  purchases  or  expenses  shall  have  been  p2rcha»e/0U- 
made;  and  the  vouchers,  when  so  certified  and  approved,  bor,  etc. 
shall  be  forwarded  to  the  auditor  of  disbursements,  who  shall  examine 
the  correctness  of  the  same,  see  that  the  account  charged  therewith  is 
the  proper  one,  audit  and  affix  his  countersignature  thereto,  and  submit 
them  to  the  president  for  approval. 

All  payments  of  employes  on  pay  rolls  shall  in  like  manner  be  certi- 
fied by  the  heads  of  departments,  and  shall  be  sent  to  the  _ 

Pay  roll  and 

auditor  of  disbursements,  who  shall  examine  the  correct-  method  of  pay- 
ness  of  the  same  and  obtain  the  approval  of  the  comptroller  m 
or  assistant  comptroller  thereto,  after  which  the  auditor  of  disburse- 
ments shall  audit  and  countersign  the  same. 

9.  All  instructions  emanating  from  the  board  or  presi-  instructions 
dent  in  regard  to  the  business  of  any  of  the  departments  £**d"  *^rou*h 
shall  be  given  through  the  head  thereof.  department*. 

10.  The    president   shall    fix    the    compensation    of    all    the    officers 
and  agents  in  the  several  departments,  and  the  wages  of 

other  employes  shall  be  fixed  by  the  heads  of  the  depart-  officers  and 
merits  to  which  they  respectively  belong,  subject  to  the  ifesiden?' 
approval  of  the  president,  and  no  new  appointment  or  in- 
crease of  salary  shall  be  made  unless  authorized  by  the  president  or 
general  manager,  on  form  983,  which  must  accompany  the 
roll  on  which  such  employe   is  returned.      In  case  of  a  appointments 
vacancy  in  any  office,  each  head  of  a  department  may  make  ^cancy*/ 
acting  or  temporary  appointments,   which  shall   be  com- 
municated forthwith,  in  writing,  to  the  president,  which  temporary  ap- 
pointment may  be  valid  until  permanent  appointments  are  made. 

11.  The  appointment  of  all  other  employes  on  the  line  of  the  road  not 
herein  provided  for,  and  the  defining  of  their  poweis  and  Appointment 
duties,  is  hereby  vested  in  the  general  manager,  or  in  the 

officers  to  whom  he  is  authorized  to  delegate  this  power. 
The  heads  of  the  departments  will  be  held  responsible  to  Heads  of 
the  board  for  the  good  conduct  of  all  the  employes  in  their  re*ponTiUe*for 
respective  departments,  and  shall  have  the  power  of  dis-  employe*, 
missal  when  they  think  it  for  the  interest  of  the  company,  when  so  re- 
quired. 


664  BY-LAWS   OF   THE    N. ,    C.    &    ST.    L.    RY. 

13.  Each  head  of  a  department  shall  make  to  the  president,  for  the 
information  of  the  board,  a  complete  annual  report  of  the 

Annual  report 

by  heads  of  affairs  under  his  charge  during-  the  year,  and  shall  report 
departments.  aiso  to  the  president  all  matters  of  importance  or  interest. 

13.  Each  officer,  agent,  and  employe  of  the  company  in  each  depart- 
ment will  be  required  to  give  his  whole  time  and  attention  to  the  duties 
assigned  to  him,  and  use  every  exertion  to  secure  to  the  company  the 

best  results  in  its  operations,  by  increasing1  the  traffic  of  its 

General  sum- 
mary of  duties     railroads,    and  by   conducting  its  business    in    the    most 

agentseiand  economical  and  efficient  manner;  and  whenever  any  cir- 
empioyes.  cumstance  may  come  to  his  notice  that  is  deemed  to  be  ad- 

vantageous or  detrimental  to  the  interests  of  the  company,  whether  in 
his  own  department  or  otherwise,  he  shall  immediately  report  the  same 
to  the  head  of  his  department  for  report,  if  deemed  proper,  by  that 
officer  to  the  general  manager  or  to  the  president. 

14.  In  case  of  any  disagreement  between  the  heads  of  departments 

as  to  the  rights  and  duties  of  each,  or  in  case  either  shall 

Disagreements 

between  heads     think  that  the  requisitions  made  by  the  other  on  his  de- 
departments,    partment  are  unreasonable,  or  not  for  the  interest  of  the 
company,  such  matters  in  dispute  shall  be  referred  to  the  president, 
whose  decision  shall  be  final. 
Intemperance,          15>  ^°  Person  addicted  to  the  use  of  intoxicating  drinks, 

vice,  profanity,  Or  who  is  vicious,  profane,  or  uncivil  in  his  deportment, 
or  incivility  of 

employes  not  shall  be  employed  or  continued  in  the  service  of  the  com- 
permitted.  paQy 

16.  Free  tickets  shall  be  issued  only  by  the  president,  general  man- 
Issue  of  ager,  and  such  other  officers  as  the  president  may  author- 
free  tickets.        jze      Division  superintendents  may  pass  their  immediate 
employes  when  in  discharge  of  their  duties.    All  conductors  and  engine- 
men  are  strictly  prohibited  from  allowing  any  free  travel  on  the  road 
except  as  authorized  by  the  rules  governing  free  travel  and  passes. 

17.  No  officer  or  employe  of  the  company  shall  be  absent  from  the 
Absence  from      duties  of  his  post  without  the  consent  of  the  president  or 
dutv>  the  head  of  the  department  to  which  he  belongs. 

18.  Copies  of  all  circulars  or  general  orders  issued  by  the  head  of  any 
Copies  and          department  shall  be  sent  to  the  heads  of  each  of  the  other 
general  orders,    departments,  and  also  to  the  president  and  secretary. 


GENERAL    POWERS   OF   THE    N.,    C.    <fe    ST.    L.    RY. 


CHAPTER   LV. 

CAPITAL    STOCK— AMOUNT— VALUE   OF   SHARES— HOW   TO    BE 

TRANSFERRED— LIABILITY  OF  COMPANY 

FOR  ILLEGAL. 

Amount  and  value  Of  Shares.— Section  2  of  the  charter 
provides  that  the  amount  of  the  capital  stock  may  be  sixty 
thousand  shares  of  twenty-five  dollars  each,  but  by  section  0 
of  the  same  charter  it  is  also  provided  that  as  soon  as  the 
number  of  forty  thousand  shares  shall  have  been  subscribed,  it 
shall  be  the  duty  of  the  commissioners  appointed  to  declare  the 
same  to  appoint  a  time  for  the  stockholders  to  meet  in  Nash- 
ville, at  which  time  and  place  they  were  empowered  to  elect 
directors,  etc.,  thus  giving  authority  to  commence  operating 
the  road  under  less  capital  than  the  sixty  thousand  shares,  if 
necessary. 

The  value  of  the  shares  was  subsequently  increased  to  J100,  under 
acts  Tenn.  1889,  ch.  10?. 

Special  acts  authorizing  increase  of  capital.— The  only 

special  act  of  the  legislature  authorizing  the  Nashville  &  Chat- 
tanooga Railroad  Company  to  increase  its  capital  was  the  act 
of  1857-8,  ch.  161,  sec.  4,  which  permitted  it  to  do  so  to  an 
amount  necessary,  with  the  state's  aid,  to  build  the  Jasper 
Branch. 

Amount  of  capital  stock;  how  increased.— it  is  a  well  set- 
tled principle  of  corporation  law  that,  in  the  absence  of  statute 
or  permissory  provision  in  the  charter,  a  corporation  has  no 
implied  power  to  increase  or  diminish  the  amount  of  its  capital 
as  originally  fixed,  and  every  attempt  of  the  corporation  to 
exert  such  power  before  it  is  conferred  by  any  direct  or 
express  act  of  its  officers  is  void.  And,  even  where  the  power 
is  given  to  vary  the  capital,  such  power  cannot  be  exercised  by 
the  directors  until  they  have  been  authorized  by  the  stockhold- 
ers. 18  Wall.,  233  [21:902];  13  N.  Y.,  599;  3  Mason,  308; 


666  CAPITAL    STOCK. 

26  Ohio  St.,  673;  30  Conn.,  231;  34  N.  Y.,  30;  54  Pa.  St., 
270;  Boone  on  Corp.,  158;  1  Lea  (Tenn.),  408;  6  Pick.  (Tenn.), 
23;  95  N.  Y.,  93;  73  Ala.,  325;  105  U.  S.,  143. 

Is  there  anything  in  the  charter,  therefore,  that  gives  the 
right  to  increase  or  diminish  the  capital  stock  ?  The  only  pro- 
vision on  the  subject  is  to  be  found  in  section  17,  which  pro- 
vides that:  "The  said  company  may  at  any  time  increase  its 
capital  to  a  sum  sufficient  to  complete  the  said  road  and  stock 
it  with  everything  necessary  to  give  it  full  operation  and  effect, 
either  by  opening  books  for  new  stock  or  by  selling  such  new 
stock, ' '  etc.  This  section,  however,  has  been  construed  by  the 
supreme  court  of  Tennessee  to  give  only  the  limited  power  to 
do  so  in  order  to  complete  and  equip  the  road,  and  for  no  other 
purpose.  4  Pick.  (Tenn.),  140. 

It  would  follow,  therefore,  that,  unless  there  is  some  general 
law  authorizing  the  company  to  increase  its  capital  stock  at 
pleasure,  it  cannot  do  so,  save  in  the  instance  above  provided 
for. 

Section  1695  of  the  Code  Tenn.,  (M.  &  V.)  (Shannon's  Code) 
§2028,  provides  that  "any  corporation  which  may  desire  to 
change  its  name,  increase  its  capital  stock,  etc.,  shall  have  the 
right  to  do  so,  by  the  board  of  directors  of  said  corporation 
copying  said  amendment,  and  making  an  application  in  these 
words: 

' '  STATE  OF  TENNESSEE,  ACT  OF  INCORPORATION.  We,  the 
undersigned,  comprising  the  board  of  directors  of  [here  insert 
the  name  of  the  corporation]  apply  to  the  State  of  Tennessee, 
by  virtue  of  the  general  laws  of  the  land,  for  an  amendment  to 
said  charter  of  incorporation,  for  the  purpose  of  investing  said 
corporation  with  the  power  [here  state  the  clause  in  the  general 
law  aforesaid,  which  is  desired  as  an  amendment,  or  if  it  be 
simply  to  change  the  name,  so  state  the  fact.] 

"  Witness  our  hands  the  —  day  of  - 

[To  be  signed  by  directors.]" 

The  instrument  shall  be  probated,  etc.  Code  Tenn.  (M.  & 
V.)  §  1695;  Acts  Tenn.  1883,  ch.  163,  (Shannon's  code,  §  2028). 

This  law  as  incorporated  in  the  code  leaves  a  doubt  as  to 


GENERAL    POWERS   OF   THE    N.,    C.    <fe    ST.    L.    RY.  •'.''>  7 

whether  it  is  applicable  to  any  corporations  but  those  chartered 
under  the  general  law,  but  by  referring  to  the  act  itself  [acts 
Tenn.  1883,  ch.  163]  it  will  be  found  that  it  expressly  pro- 
vides that  ' '  any  corporation  heretofore  chartered  by  an  act  of 
the  general  assembly,  which  may  desire  to  change  its  name, 
increase  its  capital  stock,  etc.,"  shall  have  the  right  to  do  so 
in  the  manner  as  set  out  above.  This  act,  therefore,  would 
also  apply  to  the  charter  of  the  Nashville  &  Chattanooga  Rail- 
road, although  it  was  chartered  by  a  special  act  of  the'  legisla- 
ture. 

Again,  by  the  acts  of  Tennessee,  1881,  ch.  9,  sec.  1,  it  was 
provided  that  "railroad  companies  existing  under  the  laws  of 
this  state,  or  of  this  state  and  any  other  state  or  states,  whose 
original  charter  of  incorporation  was  granted  by  this  state,  are 
empowered  to  issue  bonds  and  secure  the  payment  thereof  by 
mortgage  upon  their  franchises  and  property  in  an}'  state,  or 
upon  any  part  of  such  franchises  and  property,  or  to  issue  in- 
come or  debenture  bonds,  and  such  guaranteed  preferred  and 
common  stock  as  may  be  determined  upon  by  the  stockholders; 
Provided,  The  same  be  approved  by  the  votes  of  the  holders  of 
three-fourths  in  amount  of  the  entire  stock  of  said  company  at 
a  regular  or  called  meeting  of  the  stockholders  of  said  com- 
pany; and  that  sixty  days'  notice  be  given  in  a  Memphis, 
Knoxville,  and  Nashville  daily  newspaper  of  the  time,  place, 
and  purpose  of  the  meeting."  Code  Tenn.  (M.  &  V.),  §  1277; 
Shannon's  Code,  £  1542.  This  act  does  not  repeal  act  of  1877, 
ch.  72.  4  Pickle  (Tenn.),  140. 

Under  the  above  acts  the  capital  stock  of  the  company  was 
increased  to  $10,000,000  at  the  annual  meeting  of  stockholders 
June  30,  1891. 

Section  1901  of  the  code  of  Tenn.  (M.  &  V.),  (Shannon's 
code,  §  2424),  provides  that  "The  board  of  directors  may,  at 
any  time,  increase  the  capital  stock,  if  the  necessities  of  the 
corporation,  in  their  estimation,  require  said  increase."  This 
provision,  however,  only  relates  to  roads  chartered  under  the 
general  law  (acts  Tenn.,  1875,  ch.  142),  and  hence  does  not 
apply  to  this  railway.  See,  also,  acts  Tenn.,  1897,  p.  271. 


668  CAPITAL    STOCK. 

A  better  way,  however,  if  it  can  now  be  done,  which  is 
doubtful  under  our  new  constitution  of  1870,  to  increase  the 
capital  stock  would  be  to  petition  the  legislature  for  an  amend- 
ment to  the  charter  for  that  purpose  as  provided  for  in  section 
34  of  the  charter.  This  would  be  the  safest  course  in  all  cases 
if  it  could  be  pursued.  For  reason  see  "Charter,"  sub-head 
"Amendments  to." 

Surplus  on  hand  is  not  capital  stock.     11  Pickle  (Tenn.),  223,  635. 

Who  to  vote  on ;  what  vote  necessary.— it  will  be  observed 

that,  should  either  of  the  methods  as  set  out  above  be  followed, 
the  only  result  accomplished  would  be  to  give  the  corporation 
authority  to  increase  its  capital  stock.  It  would  not  be  in- 
creased by  virtue  of  the  amendment.  The  stockholders  would 
have  to  vote  upon  the  question  of  "increasing"  or  "not  in- 
creasing ' '  the  capital  stock,  under  the  authority  thus  con- 
ferred. The  board  of  directors  could  not  do  it.  18  Wall., 
233  [21:  902];  13  N.  Y.,  599;  26  Ohio  St.,  673;  30  Conn., 
231;  34  N.  Y.,  30;  54  Pa,  St.,  270;  1  Lea  (Tenn),  408;  105 
U.  S.,  143. 

What  VOte  necessary. — No  specified  majority  is  pointed  out 
in  the  first  act  above  mentioned,  and  hence  under  it  a  majority  by 
implication  would  only  be  necessary.  5  Sneed  (Tenn),  566-568. 
But  as  the  second  act  above  set  out  (Acts  1881,  ch.  9)  requires 
the  approval  of  the  holders  of  three-fourths  of  the  entire  stock 
of  said  company  at  a  regular  or  called  meeting,  prudence 
should  require  that  this  act,  in  regard  to  the  necessary  vote, 
should  be  followed,  and  the  courts  would  doubtless  so  hold. 

At  what  meeting  to  be  authorized.— The  provisions  of  the 

Acts  of  Tennessee  1881,  ch.  9,  should  be  followed  which  pro- 
vides that  the  vote  be  taken  at  "a  regular  or  called  meeting  " 
of  the  stockholders,  and  that  sixty  days'  notice  be  given  in  a 
Memphis,  Knoxville  and  Nashville  daily  newspaper  of  the  time, 
place  and  purpose  of  the  meeting.  See  Code  Tenn.  (M.  &V.)r 
§  1277  [Shannon's  Code,  §  1542.] 

Stock  so  increased  may  be  sold  at  discount.— An  active  cor- 
poration may,  for  the  purpose  of  paying  its  debts  and  obtain- 
ing money  for  the  successful  prosecution  of  its  business,  "issue 


GENERAL   TOWERS   OF   THE    N. ,    C.    &    ST.    L.    RY. 

new  stock  and  sell  it  for  the  best  price  that  can  l>e  obtained. 
139  U.  8.,  417,  [35:  229.] 

Preferred  and  guaranteed  stock;   how  issued.— Preferred 

stock  can  never  be  issued  unless  the  authority  to  issue  the  same 
is  given  by  statute,  or  in  the  charter,  or  by  agreement  between 
all  parties  interested.  Thompson  on  Corp.,  sec.  2244. 

There  is  nothing  in  the  charter  of  the  Nashville  &  Chatta- 
nooga Railroad  or  amendments  thereto  authorizing  the  issue  of 
preferred  stock,  but  under  the  general  law  of  Tennessee  "all 
railroad  companies  existing  under  the  laws  of  this  state,  or  of 
this  state  and  any  other  state  or  states,  whose  original- charter 
of  incorporation  was  granted  by  this  state,  are  empowered  to 
issue  such  guaranteed,  preferred  and  common  stock  as  may  lie 
determined  upon  by  the  stockholders;  -Provided,  The  same  be 
approved  by  the  votes  of  the  holders  of  three-fourths  in  amount 
of  the  entire  stock  of  said  company  at  a  regular  or  called  meet- 
ing of  the  stockholders  of  said  company;  and  that  sixty  days' 
notice  be  given  in  a  Memphis,  Knoxville  and  Nashville  daily 
newspaper  of  the  time,  place  and  purpose  of  the  meeting/' 
Code  Tenn.  (M.  &  V.),  §  1277;  Acts  Tenn.  1881,  ch.  9,  sec.  1 
[Shannon's  Code,  §  1542.] 

The  supreme  court  has  decided  that  this  act  does  not  repeal  the  special 
limitations  imposed  by  acts  of  Tenn.  1877,  ch.  72,  upon  the  power  of  con- 
solidated railway  companies  to  mortgage.  4  Pickle  (Tenn.),  140. 

StOCk  dividends.—      [See  « l  Dividends. ' ' ] 

Value  of  Shares;  how  increased.— The  original  value  of 

each  share  of  stock  was  twenty-five  dollars.  [Charter,  sec.  2.] 
No  power  is  given  the  railway  in  its  charter,  or  amend- 
ments thereto,  to  increase  the  value  of  the  shares,  but  under 
the  general  law,  by  acts  of  Tenn.,  1889,  ch.  102,  it  was  pro- 
vided "that  any  corporation  hereafter  created,  or  hereafter  to 
be  created,  under  the  laws  of  the  state  of  Tennessee,  may 
make  a  share  of  stock  one  hundred  dollars,  or  less,  and  issue 
certificates  therefor,  and  that  any  such  corporation  which  has 
heretofore  issued  shares  of  stock  for  twenty-five  dollars  may 
call  in  the  same,  and  combine  four  such  shares  and  issue  a 
certificate  for  one  hundred  dollars  in  lieu.''  Acts.  Tenn.,  1889, 


670  CAPITAL    STOCK. 

ch.  102.  Under  this  act  the  railway  issued  new  certificates, 
for  SI 00  each,  as  provided  above,  in  place  of  the  original,  as 
per  resolution,  adopted  May  30,  1889. 

Shares  of  stock;  how  to  be  transferred.— The  charter  of  the 

railway  company  provides  that  "the  stock  of  said  company 
may  be  transferred  in  such  manner  and  form  as  may  be  di- 
rected by  the  by-laws  of  said  corporation.1'  Charter,  sec.  16, 
p.  10  herein.  The  company  subsequently  enacted  the  follow- 
ing by-laws  upon  the  subject: 

"  Certificates  of  stock  shall  be  issued  to  the  stockkolders  and 
transfers  of  them  made  when  required."  See  p.  648,  herein. 

"The  secretary  shall  see  that  all  certificates  of  stock  are 
countersigned  by  the  transfer  agent  and  the  register,  and  that 
no  transfers  are  made  except  on  the  stockholders  signing  in 
person  or  by  attorney."  See  p.  650,  herein. 

' '  No  transfer  shall  be  allowed  without  the  surrender  of  the 
certificate  transferred,  and  such  certificate  shall  be  canceled 
and  filed."  See  p.  650,  herein. 

"No  transfer  of  stock  shall  be  made  for  ten  days  next  pre- 
ceding any  meeting  of  the  stockholders,  nor  for  ten  days  prior 
to  the  payment  of  a  dividend."  See  p.  650,  herein. 

".  .  .  No  certificate  of  stock  hereafter  issued  in  Nash- 
ville shall  be  valid  or  binding  on  this  company  unless  regis- 
tered and  countersigned  before  issue  by  the  said  register  of 
transfers  in  Nashville;  and  no  certificate  of  stock  issued  in  New 
York  shall  be  valid  or  binding  on  this  company  unless  regis- 
tered and  countersigned  before  issue  by  the  said  register  of 
transfers  in  New  York,  and  no  certificate  of  stock  shall  be  ac- 
cepted for  transfer  and  cancellation  unless  so  registered,"  etc. 
See  p.  651,  herein. 

Lost  Certificates;  hOW  Supplied.— "Any  person  or  persons 
claiming  a  certificate  or  evidence  of  stock,  to  be  issued  in  lieu  of 
one  lost  or  destroyed,  shall  advertise  the  same  in  one  or  more 
newspapers  in  Nashville,  Tenn.,  twice  a  week  for  four  weeks, 
giving  the  number  and  date  of  the  certificate  lost,  and  the  num- 
ber of  shares  it  represented.  The  party  shall  then  make  appli- 
cation to  the  board  of  directors,  describing  the  certificate  by 


(iKXEKAL    I'OWEHfl    OF    THE    N.,    C.    A    ST.    L.     RY.  671 

its  number,  date,  and  amount,  and  give  full  details  as  to  the 
manner  of  loss,  verified  by  oath  or  affirmation,  and  accompanied 
by  a  copy  of  the  advertisement,  and  also  a  bond  of  indemnity, 
with  satisfactory  security,  in  at  least  double  the  amount  of  the 
par  value  of  the  shares  represented  by  the  certificate,  against 
any  loss  or  damage  that  may  arise  from  the  issuing  of  a  new 
certificate,  whereupon  the  board  may  direct  the  issue  of  a  new 
certificate  of  the  same  tenor  with  the  one  alleged  to  have  l>een 
lost  or  destroyed,  specifying  upon  the  face  of  the  certificate 
that  it  is  in  lieu  thereof  and  a  duplicate."  See  p.  648,  herein. 

Liability  of  company  in  regard  to  transfers.— Rules  requir- 
ing the  transfer  of  stock  on  the  books  of  the  company  are  made 
solely  for  the  benefit  of  the  company.  They  do  not  affect  the 
title  of  the  transferee.  His  title  is  perfect  as  between  himself 
and  the  transferer,  and  the  transferee  is  entitled,  upon  presen- 
tation to  the  corporation  of  his  certificate,  to  have  himself  reg- 
istered on  its  books  as  the  real  owner.  This  is  so  whether 
the  transfer  is  made  by  absolute  sale  or  by  way  of  pledge,  and 
whether  it  is  written  or  not.  12  Pick.  (Tenn.),  253;  91  Tenn., 
221;  3  Lea,  25;  7  Lea,  1;  85  Tenn.,  683;  86  Tenn.,  252;  13 
Lea,  333.  See,  also,  7  Pick.  (Tenn.),  221 

The  company,  however,  is  benefited  by  such  a  by-law,  iu 
knowing  who  is  entitled  to  vote,  and  to  whom  to  pay  dividends. 

Same.  If  the  transfer  is  not  made  on  the  books  of  the  corpo  - 
ration  when  assignment  is  made,  and  company,  without  notice, 
mails  a  check  for  dividends  to  the  party  whose  name  appears 
on  the  books  as  the  lawful  holder,  the  company  is  protected. 
So,  until  transfer  is  made,  the  transferer  may  vote.  Thompson 
on  Corp.,  sec.  732,  3872.  The  company  will  be  protected  in 
transferring  shares  on  books  to  assignee,  even  though  assignor 
is  an  infant,  if  stock  appears  in  his  name,  and  he  does  not 
avoid  before  transfer  on  books.  7  Pick.  (Tenn.),  223.  The 
company  will  be  compelled  to  reinstate  stockholder  whose 
shares  have  been  wrongfully  transferred  on  the  books.  9 
Pick.  (Tenn.),  482.  But  as  to  stock  affected  with  trusts,  see 
7  Pick.  (Tenn.),  222. 

A  corporation  whose  stock  is  transferable  only  on  the  books 


672  CAPITAL    STOCK. 

becomes  custodian  of  the  shares,  and  trustee  for  the  share- 
holders, and  must  exercise  due  and  proper  diligence  to  protect 
all  parties  interested  from  unauthorized  transfers;  and,  there- 
fore, if  such  corporation,  with  notice  of  the  rights  of  a  cestui 
que  trust,  aids  the  trustee  in  converting  to  his  own  use,  by 
transferring  certificate,  it  is  liable.  85  Tenn. ,  683.  A  by-law 
imposing  restraints  upon  the  alienation  of  stock  is  void.  3  Lea, 
6.  See,  also,  17  Pick.  (Tenn.),  35-i.  Suits  for  conversion  of 
stock  barred  in  three  years.  11  Pick.  (Tenn.),  p.  396. 

DUTY  OF  COMPANY  TO  INVESTIGATE  BEFORE 

TRANSFERRING  SHARES  IN  CERTAIN 

CASES  AND  LIABILITY  FOR 

FAILURE. 

1.  Where  shares  in  name  of  trustee,  who  to  assign.— If 

the  shares  appear  upon  the  books  of  the  company  in  the  name 
of  any  one  as  trustee,  this  puts  the  company  on  notice  and  in- 
quiry as  to  the  power  of  the  trustee  to  sell,  and  no  transfer 
should  be  made  until  his  power  to  sell  as  trustee  is  shown, 
otherwise  the  company  will  be  liable.  91  Tenn.,  236;  Lowell 
on  Transfer  of  Stocks,  §§  99,  100,  138,  149,  150,  153;  85 
Tenn.,  683. 

2.  Where  shares  are  held  in  trust,  generally.— Where  the 

assignment  is  made  by  the  person  appearing  on  the  books  to  be 
the  absolute  owner,  but  the  assignment  is  a  breach  of  trust, 
then  the  liability  of  the  company  to  the  cestui  que  trust  for 
transferring  such  shares  depends  not  only  upon  its  being  shown 
that  the  corporation  had  either  actual  or  constructive  notice  of 
the  breach  of  trust,  but  upon  the  further  fact  that  its  act  in 
recognizing  the  assignment  and  making  the  transfer  operated 
to  aid  the  breach  of  trust  and  contributed  directly  to  the  loss 
of  the  stock  by  the  cestui  que  trust.  7  Pick.  (Tenn.),  233; 
Lowell  on  Transfer  of  Stocks,  §  153.  Any  fact  that  would 
put  the  company  on  notice  that  the  stock  was  held  in  trust 
should  require  an  investigation  before  transferring.  Thus, 
where  stock  is  issued  to  one  as  devisee  under  and  subject  to  the 


GENERAL    POWERS    OF   THE    N.,    C.    4    ST.    L.    RY.  673 

provisions  of  a  will,  it  is  chargeable  with  notice  of  the  contents 
of  that  will,  and  of  the  trusts  imposed  thereby,  in  all  subse- 
quent dealings  with  such  shares.  85  Tenn.,  683,  33. 

3.  Where  stock  is  assigned  by  other  than  the  one  to  whom 

it  was  issued. — If  the  stock  is  assigned  by  one,  other  than  the 
person  to  whom  it  was  issued,  it  devolves  upon  the  company, 
when  called  upon  to  transfer  the  shares  and  issue  a  new  certifi- 
cate, to  inquire  and  determine  the  power  of  the  assignor  to 
assign.  91  Tenn.,  230;  Cook  on  Stock  and  Stockholders,  £  320. 

4.  Where  stock  assigned  by  administrator.— if  the  assign- 
ment is  made  by  a  person  as  "administrator/'  and  company 
makes  no  inquiry,   it  assumes   the  risk  only  of  the  assignor 
having  the  power  to  assign.     If,  however,  it  is  signed,  "ad- 
ministrator, cum  testamento  annexo,^   then  the  company  would 
be  put  on  notice  of  a  will,  and  should  examine  to  see  what  trusts 
or  limitations  are  placed  thereon.    7  Pick.  (Tenn.),  229,  230. 

5.  Where  assignment  is  forged,  or  by  void  decree.— If  a 

corporation  transfer  shares  upon  a  forged  assignment  and 
power  of  attorney,  or  upon  the  authority  of  one  wrongfully 
assuming  to  be  the  agent  of  the  owner,  or  upon  a  void  decree 
or  judgment,  its  act  would  be  a  nullity,  in  so  far  as  it  was 
thereby  sought  to  affect  the  rights  or  status  of  the  true  owner. 
Such  owner  would  remain  a  shareholder,  regardless  of  the  ille- 
gal cancellation  of  the  evidence  of  his  right,  and  notwithstand- 
ing the  issuance  of  a  new  certificate  to  the  transferee.  His 
right  would  be  no  more  affected  than  if  his  certificate  had  been 
accidentally  destroyed.  A  court  of  equity  would  compel  the 
cori>oration  to  recognize  him  as  a  shareholder  by  the  issuance 
of  a  new  certificate  and  compel  an  accounting  for  dividends 
wrongfully  paid  over  to  the  transferee.  91  Tenn.,  233;  97 
U.  S.,  369;  127  U.  S.,  614;  96  U.  S.,  193;  7  N.  Y.,  274; 
125  Mass.,  138;  44  Md.,  551. 

6.  Where  shares  in  name  of  partners.— A  partner  may  sell 

and  transfer  partnership  stock.  10  Mass.,  476;  Elliott  on 
R.  R.,  sec.  93.  But,  if  it  is  in  the  name  of  two  or  more 
persons,  as  joint  owners,  one  of  them  cannot  transfer  the  interest 
of  the  others.  57  Barb.  (N.Y.),  127;  Elliott  on  R.  R.,  sec.  93. 

43 


674  CAPITAL   STOCK. 

7.  Where  shares  in  name  of  infants.— The  transfer  of 

shares  by  a  minor  is  voidable,  not  void.  It  is  one  of  those 
acts  which  may  or  may  not  be  to  the  interest  of  the  minor.  To 
say  that  every  sale  of  shares  by  a  minor  was  void  would  be 
disastrous  to  them  in  most  cases.  It  is  like  the  sale  of  lands 
or  any  other  sort  of  property  by  a  minor.  The  rule  in  this 
state,  therefore,  is  that  an  assignment  of  stock  by  a  minor  is 
good  until  avoided,  and  a  corporation  will  be  protected  if  it 
makes  the  transfer  before  notice  of  avoidance  by  the  minor. 
In  fact  our  courts  hold  that  a  corporation  has  no  right  to  re- 
fuse to  make  the  transfer  if  an  avoidance  has  not  been  made  at 
date  of  transfer.  7  Pickle  (Tenn.),  221-239;  10  Am.  &  Eng. 
Enc.  L.,  635:  Cook  on  Stocks,  sees.  318,  427. 

May  subscribe  for  or  purchase  stock,  etc.,  in  other  compa- 
nies.— [In  Tennessee.]  "It  shall  be  lawful  for  any  railroad 
company  created  by  and  existing  under  the  laws  of  this  state, 
and  for  any  lessees  of  a  railroad  of  such  company,  from  time 
to  time,  to  subscribe  for  or  purchase  the  stock  and  bonds,  or 
either,  of  any  other  railroad  company  or  companies  chartered 
by  or  of  which  the  road  or  roads  is  or  are  authorized  to  extend 
into  this  state,  when  their  roads  shall  be  directly,  or  by  means 
of  intervening  railroads,  connected  with  each  other,"  etc. 
Code  Tenn.  (M.  &  V.),  §  1262;  Shannon's  code,  §  1520. 

But  for  this  enabling  statute  the  railway  could  not  purchase 
such  stock,  as  there  is  no  authority  conferred  in  its  charter  to 
do  so.  The  authority  here  '  conferred,  moreover,  is  not  in  the 
nature  of  a  contract,  and  can  be  repealed  by  any  subsequent 
legislature,  though  such  repeal  would  not  affect  purchases  pre- 
viously made  thereunder.  The  unauthorized  purchase  by  one 
corporation  of  the  shares  of  another  is  ultra  vires  and  void. 
No  suit  can  be  maintained  by  either  party  in  furtherance  or 
affirmance  of  such  void  contract,  not  even  by  a  party  who  has 
fully  executed  the  contract  on  his  own  part.  Such  illegal  con- 
tract would  create  no  estoppel  upon  either  party.  131  U.  S., 
389;  139  U.  S.,  60;  8  Pick.  (Tenn.).  115. 

[In  Alabama.]  Under  the  acts  of  Ala.,  1898-99,  p.  28,  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  has  the  power  to 


GENERAL    POWERS    OF   THE    N.,    C.    A    ST.    L.    RY.  675 

purchase,  hold,  and  use  any  or  all  of  the  capital  stock  of  any 
railroad  company  of  Alabama  with  which  it  or  its  predecessor 
in  interest  connects  either  directly  or  by  an  intervening  line. 
The  courts  of  Alabama  refuse  to  interfere  with  such  purchases 
unless  it  is  shown  that  the  business  interests  of  the  two  corpo- 
rations are  antagonistic,  and  that  the  company  owning  the  ma- 
jority of  the  stock  is  using  it  to  the  manifest  disadvantage 
of  the  minority.  101  Ala.,  607;  93  Ala.,  610;  88  Ala.,  630. 

[In  Georgia.]  The  constitution  of  Georgia  provides  that 
"the  general  assembly  of  this  state  shall  have  no  power  to 
authorize  any  corporation  to  buy  shares  of  stock  in  any  other 
corporation  in  this  state,  or  elsewhere,  or  to  make  any  con-' 
tract  or  agreement  whatever  with  any  such  corporation  which 
may  have  the  effect  or  be  intended  to  have  the  effect  to  defeat 
or  lessen  competition  in  their  respective  businesses,  or  to  en- 
courage monopoly,  and  all  such  contracts  and  agreements  shall 
be  illegal  and  void."  Code  Ga.,  1895,  §  5800. 

By  §  3091  of  same  code  it  is  provided  that  "the  natural  in- 
crease of  the  property  belongs  to  the  tenant  for  life.  Any 
extraordinary  accumulation  of  the  corpus,  such  as  issue  of  new 
stock  upon  the  shares  of  an  incorporated  or  joint  stock  com- 
pany, attaches  to  the  corpus  and  goes  with  it  to  the  remainder- 
man. Same,  §  3091. 

See  67  Ga.,  284;  93  Ga.,  678,  680. 

By  section  2179  of  the  same  code  it  is  provided  that  "any 
railroad  company  incorporated  under  the  provisions  of  this 
article  shall  have  authority  to  sell,  lease,  assign  or  transfer  its 
stock,  property,  and  franchises  to,  or  to  consolidate  the  same 
with,  those  of  any  other  railroad  company  incorporated  under 
the  laws  of  this  or  any  bther  state  or  of  the  United  States,  whose 
railroad  within  or  without  this  state  shall  connect  with  or  form 
a  continuous  line  with  the  railroad  of  the  company  incorporated 
under  this  law,  upon  such  terms  as  may  be  agreed  upon;  and 
conversely,  and  such  corporation  organized  under  the  provis- 
ions of  this  article  may  purchase,  lease,  consolidate  with,  ab- 
sorb or  merge  into  itself  the  stock,  property  and  franchises  of 
any  other  railroad  company  incorporated  under  the  laws  of  this 


676  CAPITAL    STOCK. 

or  any  other  state  or  the  United  States,  whose  railroad  com- 
pany within  or  without  this  state  shall  connect  with  or  form  a 
continuous  line  or  system  with  the  railroad  of  such  company 
incorporated  under  this  law,  upon  such  terms  as  may  be  agreed 
upon.  Code  Ga.  1895,  §  2179. 

Section  5799  of  the  same  code  provides  that  the  general 
assembly  shall  not  alter  the  charter  of,  nor  pass  any  other  gen- 
eral or  special  law  for  the  benefit  of  said  corporation,  except 
upon  the  condition  that  such  corporation  shall  thereafter  hold 
its  charter  subject  to  the  provisions  of  the  state  constitution, 
etc.  The  section  provided,  however,  that  it  should  not  apply 
to  any  amendment  for  the  purpose  of  allowing  any  existing 
road  to  take  stock  in  or  aid  in  the  building  of  any  branch  road. 
Code  Ga.  1895,  §  5799. 

[In  Kentucky.]  Any  corporation  .  .  .  may,  unless 
prohibited  by  law,  subscribe  to  the  capital  stock  of  any  other 
railroad  company  organized  under  the  law  of  this  or  any  other 
state,  with  the  assent  of  such  company;  and  any  company  or- 
ganized under  the  laws  of  this  or  any  other  state  may,  unless 
prohibited  by  law,  subscribe  to  the  capital  stock  of  any  com- 
pany  organized  under  this  law,  with  the  assent  of  such  com- 
pany, and  may  make  any  agreement  or  arrangement,  not  in- 
consistent with  law,  with  any  other  railroad  company. 

1.  Parallel  or  competing  lines. — By  section  201  of  the  constitution  of 
Kentucky,  it  is  prohibited  to  consolidate  capital  stock  franchises  or 
pool  earnings  with  any  parallel  or  competing  line.  Code  Ky.  1894,  g  201. 

Reduction  Of  Capital  StOCk. — A  corporation  has  no  power  to 
reduce  the  amount  of  its  capital  stock  by  purchase  and  cancella- 
tion of  its  own  shares.  88  Tenn.,  476. 

Entire  amount  of  stock  may  be  transferred  to  one  person 
without  working  a  dissolution  of  corporation.— 12  Pickle 

(Tenn.),  252. 

All  stock  personal  property  and  subject  to  levy  and  sale.— 

[In  Tennessee.]  The  stock  in  all  railroads  chartered  in  Ten- 
nessee is  personal  property  and  subject  to  sale  by  execution. 
Code  Tenn.  (S.),  §  4762,  see  also  §  2066;  M.  &  V.,  §  3747. 


GENERAL    POWERS   OF   THE    N.,    C.    £    ST.    L.    RY.  677 

1.  Stock  may  also  be  reached  by  attachment  in  equity  under  J  3500  of 
the  code  of  Tenn.  (S.),  I  5260;  (M.  &  V.)  4341.     See.  also,  1  Heis.,  33;  5 
Lea,  702;  1  Pickle,  194. 

2.  Stock  of  a  foreign  corporation  doing  business  in  this  state,  has  its 
nit  us  in  this  state,  and  may  be  here  attached  for  the  debt  as  a  nonresi- 
dent owner,  although  the  certificate  may  be  in  his  possession  and  be- 
yond the  limits  of  the  state  at  time  of  attachment.     1  Pickle  (Tenn.;, 
189. 

3.  The  above  section  seems  to  apply  to  corporations  chartered  by  spe- 
cial act  only,  from  a  reading  of  the  original,  though  it  is  put  in  the  code 
as  applicable  to  all. 

4.  [In  Alabama.]     Stock  is  also  personal  property  in  Alabama.    Code 
1896,  1 1261. 

5.  [In  Georgia.]     It  is  also  personal  property  in  Georgia.     Code  1895, 
$  2165. 

When  stock  passes  by  transfer  of  certificate.— See  12  Pick. 

(Tenn.),  253. 

Counties  and  cities  may  subscribe  for  stock  in  proposed 

railroads. — [In  Tennessee.]  Counties  and  incorporated  cities 
may  subscribe  for  stock  in  or  loan  its  credit  to  railroads  under 
certain  conditions.  See  code  Tenn.  (S.),  §§  1542-1572.  See, 
also,  acts  Tenn.,  1887,  ch.  3,  as  codified  in  code  Tenn.  (S.)  as 
§  1558  et  sey.,  for  additional  method.  See,  also,  9  Pick.  (Tenn.), 
239,  for  discussion  of  same. 


CHAPTER  LVI. 

CHARTER—  HOW  AMENDED— FRANCHISES  OF— WHAT  MAY  BE 

DISPOSED  OF— CHANCERY  COURT  AMENDMENTS 

TO— GROUNDS  OF  FORFEITURE  OF. 

When  charter  of  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way granted,  and  status  before  the  law.— Charters  are  public 

laws,  and  need  not  be  given  in  evidence  where  the  corporation, 
though  private,  is  created  for  public  purposes.  2  Hum.,  339; 
5  Sneed,  347,  495;  11  Hum.,  219;  7  Hum.,  33;  3  Sneed,  87; 
1  Cold.,  625;  4  Pick.,  140;  74  Ga.,  509. 

In  Alabama,  where  the  corporation  is  not  organized  under 
the  general  law,  its  charter  is  a  private  act,  of  which  the  courts 
cannot  take  judicial  notice,  and  in  the  chancery  court  it  must 


678  CHARTER,   FRANCHISES,   AMENDMENTS,   ETC. 

be  pleaded  as  well  as  proved,  though  atlaw  it  need  not  be  pleaded. 
Code  Ala.,  1876,  §  3051.  See,  also,  55  Ala.,  413;  58  Ala.,  489. 

The  charter  of  the  Nashville  &  Chattanooga  Railroad  Com- 
pany, whose  name  has  subsequently  been  changed  to  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  by  decree  of  the  chan- 
cery court  at  Nashville,  Tenn.,  in  minute  book  "X,"  p.  222, 
was  chartered  by  the  legislature  of  1845-46,  ch.  1,  which  was 
prior  to  the  constitution  of  1870.  It  has  never  been  chartered 
in  any  other  state. 

After  the  lease  of  the  Paducah,  Tennessee  &  Alabama  Railroad  (see 
p.  487  herein)  by  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  the 
secretary  of  state  of  Kentucky  held  that,  under  sec.  190  of  the  constitu- 
tion of  that  state,  and  under  %%  570,  765  and  841  of  the  code  of  Kentucky, 
1894,  that  the  said  road  could  not  be  legally  operated  until  the  charter 
of  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  properly  authenti- 
cated as  therein  provided  for,  should  be  filed  with  the  secretary  of  state 
and  railroad  commissioners,  and  further  file  with  the  secretary  of  state 
its  acceptance  of  the  constitution  of  the  state.  In  conformity  to  this 
holding,  the  board  of  directors  of  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  on  January  21,  1899,  accepted  the  constitution  of  Kentucky, 
and  filed  a  copy  of  the  same,  with  its  charter,  with  the  secretary  of 
state  of  Kentucky,  on  February  25,  1899,  and  with  the  railroad  commis- 
sion on  the  same  day. 

HOW  amended. — The  legislature  in  granting  the  charter  did 
not  reserve  the  right  to  modify,  amend,  or  repeal  the  same,  or 
any  part  thereof,  but  specifically  enacted,  in  section  34  of  said 
charter,  that  "This  charter  shall  be  amendable  from  time  to  time 
by  the  legislature,  whenever  the  president  and  directors  shall 
unanimously  petition  for  amendments,  specifying  in  the  petition 
the  nature  of  such  amendments;  and  when  such  amendments 
shall  be  adopted  by  the  legislature,  and  submitted  to  the  direc- 
tory, and  be  accepted  and  adopted  unanimously  by  the  presi- 
dent and  directors,  they  shall  be  obligatory  on  the  stockholders, 
and  not  otherwise." 

Legislature  cannot  force  amendments.— As  will  be  seen 

from  this,  it  will  require  the  consent  of  the  president  and 
directors  before  any  future  amendments  can  be  made  by  the 
legislature  to  the  charter.  The  legislature  cannot  thrust  an 
amendment  upon  it  or  enforce  the  abrogation  of  any  right 
directly  conferred.  Every  section  which  was  legal  in  itself 
at  the  time  of  its  enactment,  and  which  confers  a  specific 


GENERAL    POWERS    OF   THE    N. ,    C.    A   ST.    L.    RV.  679 

right  to  build  and  operate  a  railroad,  together  with  all  fran- 
chises, privileges,  or  licenses  in  the  nature  of  property,  and 
not  merely  personal  privileges,  was  in  the  nature  of  a  con- 
tract, and,  as  such,  is  under  the  protection  of  the  constitution 
of  the  United  States,  and  is  irrevocable  and  inviolable  by  any 
act  of  the  legislature,  or  even  a  constitutional  convention  of 
the  state,  without  the  consent  of  the  corporation. 

United  States  authorities. — 80  U.  S.,  568  (13  Wall.,  264); 
83  U.  S.,  326  (16  Wall.,  244);  87  U.  S.,  282  (20  Wall.,  36); 
4  Wheaton  U.  S.,  468;  117  U.  S.,  129. 

State  authorities. — 9  Bax.,  442;  3  Cold.,  88,  496;  1  Sneed, 
114;  9  Yer.,  488;  11  Lea,  336;  3  Hum.,  305;  1  Heis.,  284; 
3  Tenn.  Ch.,  465,  13  Lea,  400;  2  Pick.,  614;  3  Pick.,  155; 
1  Head,  81;  3  Sneed,  629. 

Amendments  accepted  and  adopted  are  valid,  though  not 

petitioned  for. — An  amendment,  however,  accepted  and  adopted 
by  the  president  and  directors,  unanimously,  will  be  valid, 
although  not  recommended  by  the  unanimous  petition  of  the 
president  and  directors,  that  being  merely  directory.  8  Bax., 
108.  See  also  case  of  Rogers  v.  Nashville,  Chattanooga  <&  St. 
Louis  JZailway. 

It  is  always  prudent,  however,  to  petition  specially  for 
amendments,  as  provided  above,  if  it  can  now  be  done,  since 
the  constitution  of  1870,  which  is  doubtful,  as  many  acts  of 
the  legislature  offering  them  are  coupled  with  a  clause  or  con- 
dition that,  if  accepted,  would  render  the  company  liable  to 
taxation  on  its  capital  stock  that  is  now  exempt  forever,  or 
render  its  charter  liable  to  be  amended  without  its  consent,  as 
at  present.  If  offered  amendments,  therefore,  are  ever  ac- 
cepted, care  should  be  taken  to  see  that  no  such  conditions 
accompany  them.  No  amendments  adopted  so  far  render  the 
company  liable. 

The  charters  of  the  various  roads  now  owned  or  controlled 
by  the  Nashville,  Chattanooga  &  St.  Louis  Railway  have  also 
clauses  upon  this  subject,  which  can  be  found  in  this  compila- 
tion under  their  respective  headings  and  charters. 

Legislature  may  pass  amendments   and   enabling  acts 

enlarging  powers,  When. — It  is  generally  conceded  that  if  the 


680  CHARTER,    FRANCHISES,    AMENDMENTS,   ETC. 

amendment  offered  by  the  legislature  enlarges  the  powers 
originally  granted  without  objectionable  provisos,  conditions, 
etc.,  that  it  can  be  made.  Thus  by  conferring  upon  a  corpo- 
ration the  power  to  sell,  for  its  own  benefit,  its  real  estate, 
although  the  charter  forbids  such  alienation.  57  Pa.  St.,  213; 
29  Ala.,  651;  13  Lea  (Tenn.),  401.  "Where  the  legislature 
has  conferred  enlarged  powers  upon  the  managers  of  a  corpo- 
ration, with  the  assent  of  a  majority  of  the  stockholders,  a 
single  stockholder  cannot,  it  has  been  held,  by  withholding  his 
assent,  hinder  the  execution  of  such  powers.  54  Pa.  St.,  270. 
But  the  legislature  cannot  pass  enabling  acts  which  operate  to 
interfere  with  rights  already  vested."  Thomp.  on  Corp., 
sec.  5396. 

"Grants  beneficial  to  a  corporation  will  be  presumed  to 
have  been  accepted  by  it,  when  nothing  appears  to  the  con- 
trary, the  same  as  grants  to  natural  persons.  47  Maine,  34; 
7  Pick.,  344;  17  Maine,  442.  If  in  such  case  the  act  by 
which  the  benefit  is  conferred  do  not  expressly  require  a 
formal  acceptance,  then  none  such  is  necessary  to  enable  a  cor- 
poration to  avail  itself  thereof.  47  Maine,  34;  17  Maine,  442; 
More  especially  so  if  the  corporation  proceeds  to  do  the  acts 
or  exercise  the  powers  which  are  contemplated  by  the  grant, 
or  in  any  manner  avails  itself  thereof."  12  Wheat.  (U.  S.}. 
64;  10  Bush,  529;  47  Maine,  34;  66  Mo.,  228;  cited  by  Rorer 
on  Railroads,  19.  See  also  8  Pick.,  168. 

Such  amendments  and  enabling  acts,  however,  not  pro- 
tected as  contracts,  and  can  be  repealed  at  pleasure.— AS  has 

heretofore  been  explained,  all  franchises,  privileges  or  licenses 
in  the  nature  of  property,  and  not  merely  personal  privileges, 
contained  in  the  original  charter,  are  in  the  nature  of  contracts 
and  cannot  be  impaired  by  subsequent  legislation.  There  is  a 
distinction,  however,  between  such  franchises  and  those 
granted  after  incorporation  by  way  of  mere  gratuity. 
Those  contained  in  the  charter  and  accepted  are  protected  as 
contracts,  the  latter  are  not.  Thus  it  has  been  held  that  an 
amendment  to  a  charter  which  merely  conferred  a  new  right, 


GENERAL    POWERS   OF    THE    N.,    C.    A    ST.    L.    RY.  681 

or  enlarged  an  old  one,  without  imposing  any  additional  bur- 
den, is  a  mere  license  or  promise  by  the  state  which  the  legis- 
lature may  revoke  at  pleasure.  102  Pa.  St.,  123.  Of  this 
kind  also  are  all  enabling  acts.  For  instance,  there  is  no 
authority  conferred  in  the  charter  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  or  amendments  thereto,  author- 
izing it  to  mortgage  its  road,  etc.  The  legislature  has  passed 
enabling  acts,  which  are  now  a  part  of  the  general  law  of  the 
state,  permitting  all  railways  to  mortgage  their  property. 
Such  acts,  however,  are  merely  gratuitous  and  may  be  revoked 
at  pleasure,  though,  of  course,  in  such  an  event  no  mortgage 
executed  in  conformity  to  the  present  law  would  be  affected 
thereby.  See  Thomp.  on  Corp.,  §  5435. 

What  are  the  present  franchises  of  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway. — The  original  charter  of  the 
Nashville  &  Chattanooga  Railroad  Company  was  granted  by  the 
acts  of  Tenn.  of  1845-6,  ch.  1.  Its  name  was  subsequently 
changed  to  the  Nashville,  Chattanooga  &  St.  Louis  Railway.  May 
30,  1873,  by  decree  of  the  chancery  court  at  Nashville,  Tenn., 
under  the  acts  of  1870-1,  ch.  54,  p.  63,  as  per  minute  book 
"X,"  p.  222-224,  of  said  court.  It  was  never  chartered  in 
any  other  state.  Subsequent  to  its  incorporation  many  acts 
amendatory  thereof  have  been  passed.  Not  only  this,  but 
many  independent,  branch  and  lateral  roads  have  been  added  to 
its  original  line  by  purchase,  lease,  construction  or  otherwise. 
Many  of  these  roads  had  charters  of  their  own,  conveying 
various  franchises,  privileges,  rights  and  immunities.  It  will 
be  important  to  determine  how  many  of  these  passed  with  the 
respective  conveyances,  in  order  to  ascertain  the  present  fran- 
chises of  the  Nashville,  Chattanooga  &  St.  Louis  Railway.  To 
do  so,  the  laws  in  existence  at  the  date  of  the  respective  pur- 
chases, leases,  etc.,  together  with  the  terms  and  method  of 
conveyance,  will  have  to  be  examined.  This  will  be  gone  into 
fully  in  the  discussion  of  the  charters,  franchises,  etc.,  of  the 
respective  roads  acquired.  For  the  time  being,  however,  it 
may  be  said  with  confidence  that  such  franchises,  rights,  privi- 
leges and  immunities  contained  in  the  charters  of  the  various 


682  CHARTER,    FRANCHISES,    AMENDMENTS,   ETC. 

roads  acquired,  and  which  passed  to  the  Nashville,  Chattanooga 
&  St.  Louis  Railway,  by  virtue  thereof,  will  be  confined  alone 
to  the  line  of  those  roads.  See  case  of  Rogers  v.  Nashville, 
Chattanooga  &  St.  Louis  Railway  decided  at  Cincinnati  by 
Judge  Lurton  of  the  circuit  court  of  appeals,  but  which  has 
not  yet  been  reported.  On  the  other  hand,  it  seems  to  be  an 
open  question  whether  or  not  those  contained  in  the  original 
charter  of  the  Nashville  &  Chattanooga  Railroad  Company  do 
not  spread  out  and  embrace  all  after  acquired  lines;  for  the 
authority  to  purchase  and  operate  other  roads  would  doubtless 
by  implication  change  the  termini  of  the  original  road  and  con- 
stitute the  road  so  purchased  a  part  of  its  main  stem.  The 
subject  has  never  been  judicially  noticed  in  Tennessee,  but 
many  of  the  states  recognize  the  soundness  of  the  doctrine. 
Thus,  in  New  Jersey,  it  was  held  that:  "Where  a  railroad 
sixty-six  feet  wide  is  purchased  by  another  company  which 
had  power  to  condemn  a  hundred  feet  in  width,  the  latter  com- 
pany, after  operating  the  road  for  several  years,  might  widen 
it  to  a  hundred  feet.  33  N.  J.  L.,  323;  4  Vroom,  323;  Rorer 
on  Railroads,  p.  331. 

These  questions  will  be  discussed  more  fully  in  the  places 
mentioned  above.  Under  this  head  it  will  be  gone  into  gener- 
ally, and  such  application  as  will  be  made  will  relate  more 
particularly  to  the  franchises,  etc.,  contained  in  the  charter 
and  amendments  thereto  of  the  original  Nashville  &  Chatta- 
nooga Railroad  Company,  as  set  out  in  the  acts  of  Tenn. 
1845-6,  ch.  1.  See  p.  1  herein. 

1.  In  Alabama.     For   franchises   granted   Nashville,  Chattanooga  & 
St.  Louis  Railway  in  Alabama,  see  p.  55  herein. 

2.  In  Georgia.     For   franchises  granted    Nashville,    Chattanooga   & 
St.  Louis  Railway  in  Georgia,  see  p.  61  herein. 

What  is  a  franchise. — Chancellor  Kent  has  said  that  ' '  fran- 
chises are  privileges  conferred  by  grants  from  the  government 
and  vested  in  private  individuals,  and  that  they  contain  an  im- 
plied covenant  on  the  part  of  the  government  not  to  invade  the 
rights  vested,  and  on  the  part  of  the  grantee  to  execute  the 
conditions  and  duties  prescribed  in  the  grant."  3  Kent's  Com., 


GENERAL   POWERS   OF  THE   N.,    C.    A   ST.    L.    RV.  683 

458:  Again,  a  franchise  may  be  defined  as  "a  privilege  or 
authority  vested  in  certain  persons  by  grant  of  the  sovereign, 
to  exercise  powers  or  to  do  and  perform  acts  which  without  such 
grant  they  could  not  do  or  perform."  Lewis  on  Em.  Dom., 
sec.  135.  Mr.  Thompson,  in  his  work  on  corporations,  quotes 
the  following  from  Chief  Justice  Horton,  of  Kansas:  "The 
word  '  franchise  '  is  generally  used  to  designate  a  right  or  priv- 
ilege conferred  by  law.  What  is  called  '  the  franchise  of 
forming  a  corporation '  is  really  but  an  exemption  from  the 
general  rule  of  the  common  law  prohibiting  the  formation  of 
corporations.  All  persons  in  this  state  have  now  the  right 
of  forming  corporate  associations  upon  complying  with  the  sim- 
ple formalities  prescribed  by  the  statute.  The  right  of  form- 
ing a  corporation,  and  of  acting  in  a  corporate  capacity,  under 
the  general  laws,  can  be  called  a  franchise  only  in  the  sense  in 
which  the  right  of  forming  a  limited  partnership,  or  of  execut- 
ing a  conveyance  of  land  by  deed,  is  a  franchise."  40  Kan.,  96. 

Different  kinds  Of  franchises.— There  are  two  kinds  of  fran- 
chises, primary  and  secondary.  The  first  is  the  franchise  of 
being  a  corporation  with  succession  of  members — of  having  a 
corporate  existence.  The  second  is  the  franchise  of  holding 
particular  property,  carrying  on  a  particular  business,  etc. 
Thompson  on  Corp.,  sec.  5353. 

HOW  alienated. — The  supreme  court  of  Tennessee  has  de- 
cided that  the  franchise  to  be  a  corporation  is  not  the  subject  of 
sale  and  transfer,  unless  by  some  positive  provision  of  statute 
law  pointing  out  the  mode.  It  was  also  decided  that  the  fran- 
chise to  form  a  corporation  and  act  in  a  corporate  capacity 
means  the  power  to  charter  a  new  corporation  by  appointing 
the  corporators,  and  that  such  a  "power  is  legislative  and  can- 
not be  presumed  from  a  mere  authority  to  sell  the  property 
and  franchises  of  an  existing  corporation.  9  Lea,  613,  614; 
21  Law  Rep.,  138;  53  Ala.,  237;  22  Ohio  St.,  428;  3  Tenn. 
Chy.,  602;  Thompson  on  Corp.,  sec  5353. 

It  was  once  decided  in  Tennessee  that  the  secondary  fran- 
chises— that  is,  the  franchises  to  build  or  own  and  manage  a 
railroad,  and  to  take  tolls  thereon,  are  not  necessarily  corpo- 


684  CHARTER,     FRANCHISES,    AMENDMENTS,   ETC. 

rate  rights;  that  they  are  capable  of  existing  in  and  being  en- 
joyed by  natural  persons,  and  there  is  nothing  in  their  nature 
inconsistent  with  their  being  assignable;  that  the  franchises 
thus  sold  would  be  such  as  appertain  to  the  use  of  the  prop- 
erty, and  without  which  the  road  would  be  of  little  value.  9 
Lea,  613;  93  U.  S.,  217. 

This  decision,  however,  seems  to  have  been  receded  from,  in 
so  far  as  it  implies  the  right  of  a  railway  company,  or  corpo- 
ration having  a  public  duty  to  perform,  to  assign  their  second- 
ary franchises  without  positive  legislative  authority.  Thus  it 
has  subsequently  been  held  that  the  powers  of  a  railway  corpo- 
ration to  execute  a  mortgage  of  its  franchises  or  of  corporate 
property  essential  to  its  operation,  must  be  expressly  conferred 
by  statute;  and  further,  that  such  a  corporation  cannot,  with- 
out express  authority,  abdicate  the  functions  and  duties  im- 
posed for  public  purposes  by  either  a  sale  or  a  lease,  and  for 
the  same  reason  it  may  not  make  a  mortgage,  for  a  foreclosure 
would  bring  about  a  sale  and  abandonment  of  its  powers  and 
responsibilities.  4  Pick.  (Tenn.),  152,  153;  15  Lea,  104. 

This  holding  seems  to  be  in  line  with  the  great  weight  of 
modern  authority.  Jones  on  Railroad  Securities,  sees.  1-10; 
86  Tenn.,  603;  101  U.  S.,  71;  Elliott  on  Railroads,  sees.  519, 
68;  Thompson  on  Corp.,  sees.  5353,  5356,  5370;  130  U.  S., 
1;  139  U.  S.,  24;  128  U.  S.,  174. 

i.  Same.    May  alienate  secondary  franchise  by  statute ; 

hOW. — [In  Tennessee.]  All  corporations  now  or  hereafter 
existing  under  the  laws  of  this  state,  whether  incorporated 
under  special  or  general  laws  of  the  state,  shall  have  the 
power,  and  they  are  hereby  authorized  and  empowered,  to 
lease  and  dispose  of  their  property  and  franchises,  or  any  part 
thereof,  to  any  corporation  of  this  or  any  other  state  engaged 
in  or  carrying  on,  or  authorized  by  its  charter  to  carry  on  in 
this  or  any  other  state  the  same  general  business  as  is  author- 
ized by  the  charter  of  any  such  lessor  corporation;  and  said 
corporations  shall  likewise  have  the  power,  and  are  hereby 
authorized  to  make  any  contract  for  the  use,  enjoyment,  and 
operation  of  their  property  and  franchises,  or  any  part  thereof, 


OENKKAL    TOWERS   OF   THE    N.,    C.    A    ST.    L.    BY.  688 

with  any  such  other  corporation  of  this  or  any  other  state,  on 
such  terms  and  conditions  as  may  be  agreed  upon  between  the 
contracting  corporations;  and  such  lessee  corporation  or  corpora- 
tions is  authorized  and  empowered  to  make  and  carry  out  such 
leases  and  contracts;  Provided,  however,  That  any  such  leases 
or  contracts,  when  made  by  or  under  the  direction  of  the  board 
of  directors  of  the  contracting  corporations,  shall  )>e  authorized 
or  approved  by  the  vote  of  a  majority,  in  amount,  of  the  stock 
of  the  lessor  corporations  present  or  represented  at  a  regular 
or  called  meeting  of  the  stockholders  of  said  corporation;  And 
provided  further.  That  sixty  days'  notice  of  such  meeting  be 
given  in  a  Memphis,  Nashville,  and  Knoxville  daily  newspaper 
of  the  time,  place,  and  purpose  of  such  meeting;  And  provided 
further,  That,  where  the  lessee  corporation  is  a  corporation  of 
this  state,  the  authority  or  approval  of  its  stockholders  shall  in 
like  manner  be  obtained  to  the  contract  or  lease;  And  provided 
furtht-r,  That  this  act  shall  not  be  so  construed  as  to  authorize 
any  corporation  of  this  or  any  other  state  to  lease  or  purchase 
any  railroad  and  line  that  is  a  competitor  for  the  same  business 
with  any  line  already  owned  or  under  control,  by  lease  or 
otherwise,  or  two  lines  of  railway  that  are  competitors  for  the 
same  business  in  this  state.  Acts  Tenn.  1887,  ch.  198;  code 
Tenn.  (S.),  2043; 

2.  All  railway  companies  of  this  state,  and  any  other  state 
or  states,  are  authorized  and  empowered  to  build,  lease  or  let, 
acquire  by  purchase,  lease,  or  otherwise,  and  operate,  hold,  or 
dispose  of  any  railroad  or  railroads  in  any  state  or  states,  or 
any  parts  or  portions  of  any  such  railroad  or  railroads,  and  the 
distribution  thereof,  as  may  be  determined  upon  by  their  stock- 
holders .  .  .  Prodded,  That  the  same  1x3  approved  by 
the  votes  of  three-fourths  in  amount  of  the  capital  stock  of  said 
company  present  and  voting,  either  in  person  or  by  written 
proxy,  at  a  regular  or  called  meeting  of  the  stockholders  of 
said  company;  And  provided  further,  That  sixty  days'  notice  be 
given  in  a  Memphis,  Knoxville,  and  Nashville  daily  newspaper 
of  the  time,  place,  and  purpose  of  the  meeting.  Acts  Tenn., 
1881,  ch.  9,  sec.  2,  as  amended  by  the  acts  of  Tenn.,  1891, 
ch.  61;  code  Tenn.  (S.),  1540. 


686  CHARTER,    FRANCHISES,    AMENDMENTS,   ETC. 

The  supreme  court  of  Tennessee  has  decided  that  the  acts  of  1881,  ch. 
9,  as  above  set  out,  do  not  repeal  the  special  limitations  imposed  by  acts 
of  1877,  ch.  72,  upon  the  power  of  consolidated  companies  to  make  mort- 
gages of  their  property.  4  Pick.,  140. 

1.  Railway  companies  may  also  purchase  franchises  of 

Other  Companies. — [In  Tennessee.]  Under  the  acts  of  1871, 
ch.  69,  which  superseded  the  acts  of  1871,  ch.  22,  it  is  pro- 
vided that:  "Every  railroad  corporation  in  this  state,  whether 
created  under  a  general  or  special  law,  shall  have  the  power  to 
acquire  by  purchase,  or  other  lawful  contract,  and  have,  hold, 
use  and  operate  any  railroad,  with  its  franchises,  belonging  to 
any  other  railroad  corporation;  and  likewise  to  have,  hold,  use 
and  operate  any  such  railroad,  with  its  franchises,  which  it 
may  have  heretofore  purchased  or  acquired.  Code  Tenn.  (M. 
&  V.)  §  1250;  (Shannon's  Code,  §  1509). 

2.  Same.    At   judicial   sales,   etc.— Prior  to  this  time, 

however,  the  legislature  had  passed  an  act  (acts  Tenn.  1870- 
71,  ch.  23,  sec.  10)  which  provided  that :  "All  the  rights, 
privileges,  and  immunities  appertaining  to  the  franchises  sold 
under  the  judicial  proceedings  instituted  against  delinquent 
railroads  by  the  state  under  the  act  of  incorporation,  and  the 
amendments  thereto,  and  the  general  internal  improvement  law 
of  the  state,  and  acts  amendatory  thereof,  shall  be  transferred 
to,  and  vest  in,  the  purchaser,  who  shall  hold  the  same  subject 
to  all  the  liens  and  liabilities  in  favor  of  the  state  as  now  pro- 
vided by  law  against  the  railroad  companies."  Code  Tenn. 
(M.  &  V.),  §  1253;  (Shannon's  Code  §  1512). 

3.  Same.— By   acts  of  Tenn.    1877,    cb.    12,    sec.     1,     it 
was  provided  that:   "The  purchasers  of  any  railroad  chartered 
by  this  state,  and  lying  in  whole  or  in  part  in  this  state,  sold 
under  any  mortgage  heretofore  or  hereafter  executed   by  it, 
when  put  in  possession  of  said  railroad  by  any  court  of  compe- 
tent jurisdiction,  shall  have  the  same  right  to  operate  the  same 
in  this  state  as  the  incorporated  company  which  executed  the 
mortgage."     Code  Tenn.  (M.  &  V.),  §1254;  (Shannon's  Code, 
.§  1513;. 

4.  Same. — By  acts  of  Tennessee  1879,  ch.  52,  sec.  2,  it  was 
provided  that:  "  Whenever  the  property  and  franchises  of  any 


GENERAL    POWERS    OF   THE    N.,    C.    <fc    8T.    L.    RY.  687 

railroad  have  been  sold,  or  may  hereafter  he  sold,  under  any 
judgment,  decree,  or  process  from  any  of  the  courts  of  record 
of  this  state,  for  the  payment  of  any  debt  due  from  said  incor- 
porated company,  the  purchasers  at  said  sale,  or  their  as- 
signees, may  organize  into  a  corporate  company  or  body,  with 
the  right  to  have,  hold,  and  operate  the  property  and  franchises 
so  purchased,  with  all  powers,  rights,  privileges,  and  immuni- 
ties, and  subject  to  all  the  restrictions  imposed  by  the  original 
charter  and  amendments  thereto  of  the  corporation  whose 
property  and  franchises  have  been  sold."  Code  Tenn.  (M.  & 
V.)§1255;  code(S.),  §1513«. 

5.  Same. — By  acts  Tenn.    1877,  ch.  12,  sec.  2,  it  was  pro- 
vided that:   "When  a  mortgage  upon  a  railroad  lying  within 
the  state,  either  in  whole  or  in  part,  shall  be  foreclosed  in  any 
court  of  this  or  of  the  United  States  having  jurisdiction  thereof, 
by  sale  under  said  mortgage,  the  purchasers  at  said  sale  shall 
be  entitled  to  and  be  invested  with  the  said  franchises  and 
property,  and  with  all  the  rights,  privileges,  and  immunities 
appertaining  thereto  by  the  laws  of  this  state,  in  the  act  of 
incorporation  of  said  company,  and  the  amendments  thereto, 
and  the  general   internal  improvement  law,  or  other  laws  of 
this  state,  in  as  full  a  manner  as  the  said  company  or  companies 
are   or    were."     Code  Tenn.  (M.  &  V.),   §1256;    (S.)  code, 
§1514. 

6.  Same.    Purchasers  may  reorganize.— It  is  further  pro- 
vided that:    "The  purchasers  at  the  sale   mentioned  in   the 
preceding  section  may,  after  being  put  in  possession  of  said 
property,  meet  together,  adopt  a  name  for  the  company  or 
corporation    to   operate   said    railroad,   and   elect  a  board  of 
directors  of  not  less  than  three,  at  least  one  of  whom  shall 
reside  in  this  state."     Code  Tenn.  (M.  &  V.),   §1257;   (S.) 
code,  §1515;  acts  Tenn.  1877,  ch.  12,  sec.  3. 

7.  Same.    Exemptions  from  taxation  do  not  pass.— It  is 

expressly  provided,  however,  by  acts  of  Tenn.  1877,  ch.  12,  sec. 
2,  and  1877,  ch.  72,  sec.  3,  that  no  exemption  from  taxation 
which  was  granted  by  the  original  charters  shall  pass  to  the 
purchasers  at  mortgage  or  judicial  sales. 


688  CHARTER,    FRANCHISES,    AMENDMENTS,    ETC. 

8.  Same.  Purchase. — ByactsTenn.,  1885,  ch.  84,  p.  171, 
sec.  1,  it  is  provided  that  "  when  any  corporation  of  this  state 
may  mortgage  or  has  heretofore  mortgaged  its  property  and 
franchises  under  the  provisions  of  its  charter,  or  the  general 
laws  of  this  state,  and  said  mortgage  has  been,  or  shall  here- 
after be,  foreclosed  under  a  power  of  sale  given  in  said  mort- 
gage, or  the  decree  of  any  court  of  this  state  or  the  United 
States,  then  and  in  that  case  the  purchaser  at  said  sale  shall, 
by  virtue  thereof,  be  entitled  to  and  be  invested  with  the  said 
property  and  franchises,  and  with  all  the  rights,  privileges, 
and  immunities  appertaining  thereto  under  the  act  of  incorpo- 
ration of  said  company,  the  amendments  thereto,  or  the  gen- 
eral laws  of  this  state  in  as  full  a  manner  as  the  said  corpora- 
tion or  company  is  or  was  entitled."  Acts  Tenn.,  1885,  ch.  84, 
p.  171,  sec.  1.  It  is  expressly  provided,  however,  in  sec.  5 
of  said  act  of  Tenn.,  18S5,  ch.  84,  " that  no  exemption  from 
taxation  existing  under  the  charter  of  said  road  so  sold  should 
pa§s  to  the  purchasers." 

Nonuser  of  franchise,  no  forfeiture  of. — By  acts  Tenn., 

1887,  ch.  190,  p.  323,  sec.  3,  it  is  provided  that  "the  non- 
user  by  any  company  incorporated  in  this  state  of  a  part  of  its 
powers,  privileges,  or  franchises,  shall  not  have  the  effect  to 
forfeit  or  to  affect  any  franchise,  right,  power,  privilege  or 
immunity  contained  in  its  charter."  Code  Tenn.  (Shannon), 
§  2042.  This  was  the  law,  however,  before  the  passage  of  the 
above  act.  10  Lea,  436,  443;  8  Bax.  235;  7  Cold.  420;  12 
Pick.  253;  15  Lea,  104,  110. 

Portions  Of  franchise  not  vendible.— It  is  now  generally  ac- 
cepted as  true  that  the  franchises  of  a  corporation  cannot  be 
split  up  or  divided  so  as  to  enable  the  corporation  to  retain 
a  part  and  transfer  the  balance.  Thus,  where  the  charter  of  a 
railway  provided  ' '  that  the  capital  stock  of  said  company  shall 
be  exempt  from  taxation,  and  its  works,  fixtures,  workshops, 
etc.,  be  exempt  from  taxation  for  ten  years,"  and  the  corpo- 
ration had  a  part  of  its  road  sold  under  a  mortgage  that 
assumed  to  convey  "the  appurtenances,  rights,  and  franchises 
of  the  company  applicable  to  this  portion  of  the  road,"  it  was 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RY.  689 

held  that  the  exemption  from  taxation  was  a  franchise  of  such 
a  nature  that  it  did  not  pass  by  the  sale  of  a  portion  of  the 
property.  Thomp.  on  Corp.,  sec.  5367,  citing  93  U.  S.,  217. 

Certain  property  necessary  to  the  exercise  of  the  fran- 
chises not  vendible,  When. — A  corporation  cannot,  without  the 
express  sanction  of  the  state,  alien  any  property  necessary  to 
the  possession  and  enjoyment  of  its  inalienable  franchises;  that 
is  to  say,  such  property  as  is  necessary,  either  (1)  to  the  exer- 
cise of  its  franchise  to  be  a  corporation,  or  (2)  to  the  discharge 
of  the  public  duties  in  consideration  of  which  its  franchises 
have  been  granted.  Thomp.  on  Corp.,  sec.  5373. 

All  of  the  foregoing  fundamental  principles,  together  with 
others  hereafter  mentioned,  will  have  to  be  borne  in  mind  in 
discussing  what  franchises,  rights,  and  immunities  have  passed 
to  this  company  in  the  purchase  or  lease  of  the  various  roads 
that  now  form  a  part  of  its  general  system.  They  will  again 
be  referred  to  under  the  analysis  of  their  respective  charters. 

What  franchises  in  the  charter  of  the  Nashville  &  Chatta- 
nooga Railroad  Company  are  protected  as  contracts.— Analyz- 
ing the  charter  we  tind  the  following  franchises,  privileges  or 
licenses  among  the  most  important  that  may  be  considered  in 
the  nature  of  property  and  within  the  above  constitutional  pro- 
tection. As  will  also  be  shown,  some  were  mere  personal 
privileges  and  void. 

The  franchise  to  be  a  corporation,  protected.— Under  the 

above  authorities,  the  right  to  be  a  body  corporate  with  per- 
petual succession  of  members  is  insured  until  dissolved  for 
cause.  Charter,  sec.  1,  p.  1  herein.  See  71  Mo.,  526;  Thomp- 
son on  Corp.,  sec.  5658. 

The  franchise  to  buy  and  sell  real  and  personal  estate,  etc., 

protected. — Under  the  above  authorities,  the  right  to  buy,  re- 
ceive by  gift,  hold,  sell  and  convey  real  and  personal  estate 
as  provided  in  the  charter  is  insured.  Charter,  sec.  1. 

The  franchise  to  contract,  sue  and  be  sued,  make  by-laws, 

etc.,  protected. — Under  the  same  authorities,  the  right  to  make 
contracts,  sue  and  be  sued,  to  make  by-laws  and  do  all  lawful 
acts  properly  incident  to  a  corporation,  and  necessary  and 

44 


690  CHARTER,    FRANCHISES,    AMENDMENTS,    ETC. 

proper  to  the  transaction  of  the  business  for  which  it  is  incor- 
porated, and  to  have  and  use  a  common  seal,  and  the  same  to 
alter  and  destroy  at  pleasure,  is  also  insured.  Charter,  sec.  1. 

The  franchise  of  operating  the  railway  between  the 
termini,  to  the  exclusion  of  all  others  within  twenty  miles 

Of  route  adopted,  protected.— Section  13  of  the  railway  charter 
provides  that:  "After  the  route  of  such  railroad  shall  have 
been  accurately  surveyed  and  adopted,  and  a  plat  thereof 
deposited  in  the  office  of  the  secretary  of  state,  it  shall  not  be 
lawful  for  any  other  railroad  to  be  built,  cut,  or  constructed, 
in  any  way  or  manner,  or  by  any  authority  whatever,  running 
laterally  within  twenty  miles  of  the  route  so  adopted,  unless 
by  said  company,  or  with  the  consent  of  the  board  of  directors 
thereof  for  the  time  being."  Charter,  sec.  13,  p.  9,  herein. 

This  section  has  never  been  construed  by  the  supreme  court 
of  Tennessee,  but  will  doubtless  be  upheld  if  tested.  At  the 
time  the  railway  charter  was  granted,  which  was  prior  to  the 
constitution  of  1870,  there  was  nothing  in  either  the  constitu- 
tion of  the  United  States  nor  of  the  State  of  Tennessee  which 
prevented  the  legislature  from  granting  monopolies  or  exclusive 
privileges.  It  has  often  been  held  that  such  a  grant,  when 
accepted  by  the  corporation,  is  in  the  nature  of  a  contract,  and 
that  the  obligation  cannot  be  impaired  by  granting  the  same 
privilege  to  others  (17  Conn.,  40;  S.  C.,  42  Am.  Dec.,  716), 
the  obligation  being  that  the  state  will  not  permit  a  similar 
railway  to  be  built  within  the  prescribed  limits.  1  Wall.  (U. 
S).,  116;  3  Wall.  (U.  S.),  51;  73  Iowa,  513;  25  Wend.  (N. 
Y.),  628;  47  Me.,  189,  208;  115  U.  S.,  650,  683;  7  N.  H., 
35;  4  Mich.,  361;  13  Howard,  71;  55  Conn.,  1;  120  U.  S., 
64;  14  Fed.  Rep.,  194;  22  Cal.,  398;  5  How.  (Miss.),  503; 
11  La.  Ann.,  253.  See  also  15  Pick.  (Tenn.),  684;  96  Ga.,  562. 

The  privilege,  however,  may  doubtless  be  appropriated  for 
public  use,  upon  just  compensation  being  paid  therefor,  under 
the  power  of  eminent  domain.  In  such  a  case,  however,  the 
railway  desiring  to  construct  its  road  within  the  twenty  miles 
would  be  compelled  to  compensate  the  Nashville,  Chattanooga 
&  St.  Louis  Railway  therefor.  Thompson  on  Corp.,  sec. 


GENERAL    POWERS   OF    THE    N.,    C.    A    ST.    L.    RY.  691 

5398.  For  discussion  of  this,  see  "  Eminent  Domain,"  herein. 
Refer  to  index. 

The  exemption  from  compulsory  amendments  to  charter 

protected. — Neither  a  subsequent  legislature  nor  a  constitu- 
tional convention  can  thrust  an  amendment  of  its  charter  upon 
the  railway.  •  See  discussion  in  first  part  of  this  chapter. 

The  exclusive  right  of  transportation  over  the  road,  pro- 
tected.— Under  the  authorities  given  in  the  foregoing  sections, 
the  grant  contained,  in  section  14  of  the  railway  charter,  that 
"the  company  shall  have  the  exclusive  right  of  transporta- 
tion or  conveyance  of  persons,  goods,  merchandise,  and  produce 
over  the  said  railroad  by  them  to  be  constructed;  Provided, 
etc.,"  is  protected  as  a  contract.  This  section,  however,  is 
subservient  to  the  power  of  eminent  domain,  as  the  state  cannot 
bargain  away  its  sovereign  power,  and  any  act  attempting  to 
divest  it  of  the  power  would  be  void.  18  Conn.,  451;  14  Am. 
&Eng.  Corp.  Cas.,  417;  102  Pa.  Stat,  123;  48  Mich.,  433; 
53  Ala.,  211;  65  Ga.,  160;  7  N.  H.,  35;  Lewis  on  Em.  Dom., 
sec.  275. 

As  to  whether  the  power  of  eminent  domain  could  be  invoked  so  as  to 
enable  one  railway  to  condemn  the  property  of  another,  or  the  joint  use 
of  its  tracks,  except  for  crossings  [see  discussion  and  authorities  under 
heading  "  Eminent  Domain,"  herein.] 

The  right  to  condemn  property,  protected.— Section  24  of 

the  railway  charter,  which  provides  that  "where  any  lands  or 
right  of  way  may  be  required  by  the  said  company  for  the  pur- 
pose of  constructing  their  road,  and  for  want  of  agreement  as 
to  the  value  thereof,  or  from  any  other  cause,  the  same  cannot 
be  purchased  from  the  owner  or  owners,  the  same  may  be  taken 
at  a  valuation  to  be  made  by  five  commissioners,  or  a  majority 
of  them,  to  be  appointed  by  the  circuit  court  of  the  county 
where  some  part  of  the  land  or  right  of  way  is  situated,  etc," 
together  with  section  25,  which  provides  that,  in  the  absence  of 
any  contract,  the  owners  of  land  to  apply  for  such  assessment 
in  five  years,  or  be  barred,  etc.,  and  that  the  railway  will,  in 
such  cases,  be  presumed  to  have  had  granted  it  the  land  on  which 
its  road  is  constructed,  together  with  a  space  of  one  hundred  feet 
on  each  side  of  the  center  of  said  road,  etc."  is  also  protected. 


692  CHARTER,    FRANCHISES,    AMENDMENTS,    ETC. 

The  right  to  condemn  property  for  a  public  use  is  a  franchise, 
and  is  one  of  the  inviolable  rights  which  the  legislature  cannot 
withdraw,  or  surround  with  such  conditions  upon  its  exercise 
as  to  destroy  its  value.  14  Wend.  (N.  Y.),  51  (S.  C.,  18  Wend. 
(N.  Y.),  9);  31  Am.  Dec.,  313;  Rorer  on  Railroads,  p.  74. 

But  inasmuch  as  even  irrepealable  charters  as  this  one  is 
are  not  impaired  by  statutes  which  merely  change  existing 
remedies  for  the  enforcement  of  civil  rights,  it  would  follow 
that  there  is  only  secured  to  them  an  immunity  from  changes 
of  rights,  but  not  from  changes  of  remedies.  24  111.,  433,  s.  c., 
76  Am.  Dec.,  755.  Hence,  where  a  statute  or  charter  pre- 
scribes a  mode  by  which  land  may  be  taken  for  a  railway,  and 
the  legislature  by  general  act  prescribes  a  different  mode,  the 
general  act  must  be  followed.  3  S.  C. ,  381;  s.  c.,  16  Am. 
Rep.,  729;  cited  by  Thompson  on  Corp.,  sees.  5407,  5437; 
s.  c.,  54  Am.  Rep.,  114. 

Hence  to  this  extent  this  section  of  the  charter  may  be  al- 
tered by  subsequent  legislation.  12  Heis.  (Tenn.),  54. 

Subsequent  legislation  has  provided  general  laws  for  the 
condemnation  of  land.  [See  Eminent  Domain.] 

As  a  rule,  however,  a  general  law  does  not  repeal  a  prior 
special  one  merely  because  it  embraces  the  same  subject  matter. 
An  intent  to  repeal  must  be  manifest.  Lewis  on  Em.  Dom., 
sec.  248. 

Franchise  of  erecting  and  operating  warehouses  for  pay, 

protected. — Section  29  of  the  railway  charter  provides  that : 
"The  said  company  shall  have  the  right  to  take  at  the  store- 
houses they  may  establish  or  annex  to  their  railroad,  all  goods, 
wares,  merchandise,  and  produce  intended  for  transportation; 
prescribe  the  rules  of  priority,  and  charge  and  receive  such 
just  and  reasonable  compensation  for  storage  as  they,  by  rules, 
may  establish  (which  they  shall  cause  to  be  published),  or  as 
may  be  fixed  by  agreement  with  the  owners,  which  may  be 
distinct  from  the  rates  of  transportation;  Provided,  That  the 
said  company  shall  not  charge  or  receive  storage  on  goods, 
wares,  merchandise,  or  produce  which  may  be  delivered  to 
them  at  their  regular  depositories  for  immediate  transportation, 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RY.  693 

and  which  the  company  may  have  the  power  of  transporting 
immediately." 

This  franchise  of  charging  and  receiving  storage  is  also  in  the 
nature  of  a  contract  and  cannot  be  altered  or  repealed  by  sub- 
sequent legislation.  See  same  general  authorities. 

Exemption  from  taxation,  protected.— Section  38  of  the 

railway  charter  provides  that  "the  capital  stock  of  said  com- 
pany shall  be  forever  exempt  from  taxation,  and  the  road, 
with  all  its  fixtures  and  appurtenances,  including  the  workshops, 
warehouses,  and  vehicles  of  transportation,  shall  be  exempt 
from  taxation  for  the  period  of  twenty  years  from  the  comple- 
tion of  the  road,  and  no  longer." 

This  is  one  of  the  most  valuable  franchises  granted,  and  hds 
been  declared,  in  a  long  and  unbroken  chain  of  authorities,  to 
be  a  contract  between  the  incorporators  and  the  state,  and  as 
such  is  irrevocable  and  inviolable.  [See  same  general  authori- 
ties cited  in  foregoing  sections.] 

Implied  rights,  though  not  expressed  in  charter,  pro- 
tected.— All  rights  necessary  to  enable  the  corporation  to  enjoy 
those  which  are  expressly  granted  are  implied,  and  are  equally 
protected  with  the  express  ones.  Thoinp.  on  Corp.,  sec.  5393. 

Exemption  of  officers  and  agents  from  jury  and  military 

duty  not  protected. — Section  35  of  the  railway  charter  pro- 
vides that  "the  president,  directors,  clerks,  agents,  officers, 
and  servants  of  said  company  shall  be  exempt  from  military 
duty  except  in  cases  of  invasion  or  insurrection,  and  shall  also 
be  exempt  from  serving  on  juries  and  working  on  public 
roads."  This  section  was  not  in  the  nature  of  a  contract,  but 
a  mere  personal  privilege,  and  hence  was  declared  class  legis- 
lation in  Tennessee  and  unconstitutional.  4  Lea,  316.  It  was 
at  first  held  good  in  Alabama,  41  Am.  &  Eng.  It.  R.  Cases, 
275,  but  subsequently  overruled  in  91  Ala.,  70;  53  Am.  &  Eng. 
R.  R.  Cases,.  37.  See  also  Thomp.  on  Corp.,  sec.  5338. 

Exemption  from  legislative  control  as  to  freight  charges, 

not  protected. — Section  14  of  the  railway  charter  provides 
that  "the  company  shall  have  the  exclusive  right  of  trans- 
portation or  conveyance  of  persons,  goods,  merchandise,  and 


694:  CHARTER,    FRANCHISES,    AMENDMENTS,    ETC. 

produce  over  the  said  railroad  by  them  to  be  constructed;  Pro- 
vided, That  the  charge  of  transportation  or  conveyance  shall 
not  exceed  thirty-five  cents  per  one  hundred  pounds  on  heavy 
articles,  and  ten  cents  per  cubic  foot  on  articles  of  measure- 
ment for  every  hundred  miles,  and  five  cents  a  mile  for  every 
passenger;  And  provided  also,  That  the  said  company  may, 
when  they  see  fit,  farm  out  their  rights  of  transportation  on 
said  road,  subject  to  the  rates  above  mentioned."  Charter, 
sec.  14,  p.  9  herein.  If  this  section  gives  any  vested  right,  or 
amounts  to  a  surrender  on  the  part  of  the  state  of  its  power  to 
regulate  its  tolls  and  charges  for  its  services  to  be  rendered  to 
the  public,  then  it  falls  within  the  constitutional  protection 
above  explained,  and  the  railway  could  always  charge  such 
tolls  and  rates  as  to  it  might  seem  reasonable,  notwithstanding 
the  creation  of  a  subsequent  State  Railroad  Commission.  134 
U.  S.,  418  [33,  970];  16  Am.  &  Eng.  R.  R.  Cases,  1;  61 
Mo.,  24. 

A  careful  analysis  of  the  section,  however,  fails  to  show  any 
surrender  of  the  legislative  power  to  regulate  freight  charges. 
It  simply  guaranteed  to  the  company  the  right  to  charge  for 
freight  and  passengers.  It  did -not  guarantee  or  authorize  any 
particular  rates,  but  simply  prohibited  it  from  charging  more 
than  the  rates  therein  set  out. 

In  conformity  with  this  theory  our  supreme  court,  in  construing 
this  section,  has  held  that  "  its  intent  was  not  to  proportion  the 
charges  by  any  unit  of  distance,  but  to  fix  a  maximum  beyond 
which  the  company  could  not  go,  and  to  leave  the  tariff  of 
charges,  within  that  limit,  to  the  company,  subject  to  the  rule 
of  the  common  law  that  charges  should  be  reasonable,  and  to 
the  regulating  power  of  the  courts  and  of  the  legislature.  9 
Lea  (Tenn.),  609.  Hence,  this  section  would  not  protect  the 
railway  from  the  control  of  any  legally  constituted  state  railroad 
commission. 

May  charge  branch  roads,  however,  on  basis  of  twenty 

miles,  Whether  that  long  Or  not. — Section  40  of  the  railway 
charter  provides,  among  other  things,  that  branches  may  be 
built  to  connect  with  the  Nashville  &  Chattanooga  Railroad 


GENERAL  POWERS  OF  THE  N. ,  C.  A  ST.  L.  RV.     695 

Company,  but  that  "the  company  shall  not  foe  required  to  re- 
ceive any  car  from  such  branches  without  receiving  payment 
for  at  least  twenty  miles  transportation.  Charter,  sec.  40,  p. 
23,  herein. 

Chancery  court  amendments  to  charters.— All  chancery 

court  amendments,  under  the  acts  of  1870-71,  ch.  54,  save  as 
to  change  of  name,  are  useless  where  they  are  not  absolutely 
void.  The  chancery  court  only  had  authority  to  organize  cor- 
porations for  the  purpose  and  with  the  franchises  granted  by 
a  general  law,  or  to  amend  its  charter  to  that  extent,  and  no 
more.  12  Lea,  97,  102;  3  Bax.,  98;  1  Tenn.  Ch.,  83. 

Amendments,  therefore,  that  came  within  the  purposes  pro- 
vided for  by  a  general  law  would  be  valid  to  the  extent  of  the 
provisions  of  that  law,  and  only  those  would  be  void  which  at- 
tempted to  confer  powers  and  privileges  beyond  the  provisions 
of  the  statute.  Same.  See,  also,  8  Bax.,  332;  1  Tenn.  Ch., 
95,  98;  11  Lea,  3;  9  Lea,  380;  1  Lea,  462. 

This  being  so,  such  amendments  would  be  void  unless  such 
powers  and  privileges  were  already  granted  by  the  general  law. 
If  they  were  already  granted  by  the  general  law,  it  needed  no 
chancery  court  "decree  to  vest  the  corporation  with  the  power. 
Such  amendments,  therefore,  when  they  were  not  void,  wera 
useless.  Their  only  virtue,  if  any  there  be,  might  be  to  show 
an  acceptance  on  the  part  of  the  corporation  of  particular  pow- 
ers and  privileges  which  had  been  granted  by  the  general  law, 
but  such  acceptance,  however,  might  be  better  shown  in  other 
ways — as,  for  instance,  by  the  production  of  the  minute  books, 
etc.  If  a  corporation,  however,  was  properly  organized  (char- 
tered) by  a  chancery  court,  its  charter  could  be  amended  under 
the  acts  of  Tenn.,  1889,  p.  303,  and  1893,  ch.  140.  But  see 
9  and  10  Pickle. 

All  the  chancery  court  amendments,  though  of  no  particular  value, 
are  set  out  herein,  on  pp.  50-55. 

Forfeiture  Of  Charter.— To  justify  a  forfeiture  of  the  charier 
for  misuser  or  nonuser,  there  must  be  something  wrong  arising 
from  wilful  abuse,  or  wilful  neglect;  something  more  than 
accidental  negligence  or  mistake  as  to  power  granted,  or  as  to  the 


696  CHARTER,    FRANCHISES,    AMENDMENTS,    ETC. 

mode  of  exercising  an  acknowledged  power.  8  Hum.  (Tenn.), 
235;  2  Sneed  (Tenn.),  254. 

Where  such  mistakes  have  occurred,  and  there  has  been  no 
wilful  abuse  or  neglect,  chancery  will  be  confined  to  the  in- 
junction power  to  prevent  abuse.  8  Hum.  (Tenn.),  235. 

An  acting  corporation  will  be  presumed  to  be  legally  incor- 
porated until  the  contrary  is  shown,  and  no  such  franchise 
shall  be  declared  null,  or  forfeited,  except  in  a  regular  pro- 
ceeding for  that  purpose.  Code  Tenn.  §  1484;  15  Lea,  104. 

The  state  only,  which  granted  the  franchise,  can  institute 
proceedings  of  forfeiture.  15  Lea,  104;  3  Tenn.  Ch.,  164; 
3  Lea,  334,  2  Swan,  333;  12  Heis.,  497;  12  Pickle,  253-92. 
Bill  must  be  filed,  if  for  purposes  embraced  in  §  3409  of 
code,  in  name  of  state  and  with  the  sanction  of  the  attorney- 
general.  3  Lea,  333;  8  Lea,  74;  15  Lea,  110;  3  Tenn.  Ch., 
164.  See,  also,  §§3412  and  3413  of  Code  Tenn.,  as  con- 
strued in  8  Lea,  75. 

An  ordinary  business  corporation,  in  the  absence  of  statute 
to  the  contrary,  where  its  charter  specifies  no  definite  time  for 
its  continuance,  may  sell  its  property  and  wind  up  its  affairs 
whenever  a  majority  of  its  stockholders  may  deem  it  advisable. 
7  Gray,  393;  22  N.  J.  Eq.,  416;  Parker  v.  Bethel  Hotel  Co., 
vol.  34,  No.  2,  S.  W.  Rep.,  p.  214;  12  Pickle  (Tenn.),  253; 
3  Mo.  App.,  159,  169;  71  Ala,  581;  30  Pa.  St.,  42;  Mora- 
wetz  on  Priv.  Corp.,  sec.  413;  Cook  on  Stock  and  Stockholders, 
sec.  629. 

The  dissolution  of  a  pecuniary  or  business  corporation  is 
effected  in  one  of  the  following  ways,  viz. : 

1.  By  the  expiration  of  its  charter. 

The  Nashville,  Chattanooga  &  St.  Louis  Railway  charter, 
however,  has  no  time  limit,  and,  therefore,  the  corporation  can 
never  be  dissolved  in  this  manner. 

2.  By  act  of  the  legislature,  where  the  power  is  reserved  in 
the  act  of  incorporating  for  that  purpose. 

As  no  such  power  was  reserved  in  the  act  incorporating  this 
railway,  as  before  pointed  out,  it  can  never  be  thus  dissolved. 

3.  By  surrender  of  its  charter,  which  is  accepted. 


GENERAL   POWERS   OF   THE    N.,    C.    A   ST.    L.    RY.  •'.'.« 7 

This  corporation  may  be  dissolved  under  this  section,  should 
it  like.  1  Swan  (Tenn.),  165;  80  X.  Y.,  599;  63  Pa.  St.,  428; 
7  ( 'old.  (Tenn.),  420;  Cook  on  Stock  and  Stockholders,  sec.  629. 

4.  By  willful  violation  of  its  franchises  and  judgment  of  dis- 
solution pronounced  by  a  court  having  jurisdiction,  for  cause. 

But  this  can  only  be  done  by  proceedings  instituted  by  the 
state,  with  sanction  of  attorney -general. 

2  Mor.  Pri.  Corp.,  sec.  1004;  Taylor  Pri.  Corp.,  sec.  430; 
15  Lea,  104,  110;  40  N.  J.  Eq.,  427;  87  Mo.,  95;  3  Lea, 
333;  8  Lea,  74;  code  (M.  &  V.),  §§3412,  3413;  Parker  v. 
Bethel  Hotel  Co.,  vol.  34,  No.  2,  S.  W.  Rep.,  p.  209;  12  Pick., 
253-292.  See  also  10  Pick.,  124. 

See  also  "Dissolution,"  herein. 

Abandonment  of  right  of  way,  as  ground  for  forfeiture.— 

Under  the  general  laws  of  the  State  of  Tennessee,  there  is  noth- 
ing to  prevent  a  railway  company  from  abandoning  its  entire 
right  of  way,  though  such  action  would  work  a  forfeiture  of  its 
charter.  A  failure  to  build  the  entire  line  of  road,  as  authorized 
by  its  charter,  however,  is  not  a  ground  of  forfeiture  in  this  state. 
It  is  probable,  however,  that  it  cannot  permanently  abandon  a 
part  which  has  actually  been  constructed  and  in  operation  without 
such  result.  24  N.  Y.,  161;  82  Am.  Dec.,  205;  17  Am.  L.  Reg. 
(N.  S.),  266;  113  U.  S.,  424;  Elliott  on  R.  R.,  sec.  638;  2 
Barn.  &  Aid.,  646;  36  Wis.,  467;  20  N.  W.  Rep.,  696;  24 
S.  E.  Rep.,  154;  4  Dil.,  479;  29  Conn.,  538;  142  U.  S.,  492. 
But  see  12  Gray,  180;  1  Shannon  (Tenn.),  511;  120  111.,  48; 
Rorer  on  R.  R.,  572. 

Under  the  acts  of  Tenn.  1887,  ch.  39,  a  railroad  company 
may  change  either  terminus  before  the  final  location  of  the 
road.  This  would  assist  in  many  cases,  or  it  may  sell  that  part 
desired  to  be  abandoned. 

As  to  right  of  railway  company,  in  event  of  permanent  or  temporary 
abandonment,  to  remove  rails,  bridges,  etc.,  see  "  Right  of  Way,"  "  Em- 
inent Domain,1'  herein.  Refer  to  index. 

It  is  a  well-established  principle  of  law,  however,  that  in 
order  to  constitute  an  abandonment  of  a  right  of  way,  there 
must  not  only  be  a  non-user,  but  an  intention  on  the  part  of  the 


698  CHARTER,    FRANCHISES,    AMENDMENTS,    ETC. 

railway  company  to  abandon  it.      140  111.,  435;  i.  c.  30  N.  E. 
Rep.,  686;  29  Iowa,  276;  37  Ind.,  294. 

What  constitutes  a  technical  abandonment  must,  therefore, 
depend  upon  the  particular  circumstances  of  each  case.  No 
general  rule  of  law  applicable  to  all  cases  can  be  laid  down  as 
to  what  change  of  a  station  or  route  will  constitute  an  abandon- 
ment or  location.  137  Mass.,  48;  57  Iowa,  249. 

In  the  case  of  Henderson  v.  Central  Pass.  fi.  R.  Co.,  re- 
ported in  21  Fed.  Rep.,  358,  it  was  held  that  the  right  of  way 
acquired  by  a  railroad  company  may  be  lost  by  abandonment, 
and  a  nonuser  for  more  than  ten  years  was  held  to  be  sufficient 
evidence  of  the  same,  and  that  an  abandonment  is  to  be  more 
readily  presumed  where  the  easement  is  granted  for  a  public 
benefit  than  where  it  is  held  for  private  use.  21  Fed.  Rep., 
358. 

It  has  been  held,  however,  that  the  mere  sale  and  transfer 
of  the  right  of  way  to  another  company  before  the  road  is 
built  does  not  constitute  an  abandonment.  30  Minn.,  541;  14 
Am.  &  Eng.  R.  R.  Cases,  47;  2  Iowa,  288;  7  Ohio  St.  Rep., 
1;  18  Ohio  St.  Rep.,  93;  51  Am.  &  Eng.  R.  R.  Cases,  436;  5 
Cush.,  509;  52  Pa.  St.  Rep.,  506. 

So  it  has  been  held  that  the  failure  to  pay  for  the  right  of 
way  was  not  in  the  nature  of  a  forfeiture.  36  Conn.,  196. 

It  is  laid  down  as  a  general  principle  by  Elliott  on  Railroads, 
sec.  931,  that  "In  the  absence  of  any  express  legislative  en- 
actment on  the  subject,  perhaps  no  court  would  be  justified  in 
fixing  the  limit  at  which  a  failure  to  construct  its  road  should 
be  held  to  be  an  abandonment  of  its  location  on  the  part  of  the 
company,  but  the  case  should  generally  be  controlled  by  the 
rules  as  to  the  loss  of  rights  by  prescription."  Citing  159  Pa. 
St.  Rep.,  331;  57  Am.  &  Eng.  R.  R.  Cas.,  46;  104  Pa.  St. 
Rep.,  399. 

Accordingly,  he  states,  it  is  held  that  a  failure  on  the  part 
of  the  company  to  construct  its  road  for  a  number  of  years  is 
not  of  itself  sufficient  to  show  an  abandonment  of  its  right  of 
way.  Citing  29  Iowa,  276;  140  111.,  435;  30  N.  E.  Rep., 
686;  159  Pa.  St.  Rep.,  331;  57  Am.  &  Eng.  Ry.  Cas.,  46; 


GENERAL    POWERS   OF    THE    N.,    C.    A    ST.    L.     RY.  •'• '.«'.' 

108  Mo.,  50;'  51  Am.  &  Eng.  Ry.  Cas.,  426;  104  Pa.  St. 
Rep.,  399;  129  Mo.,  62;  Elliott  on  Railroads,  sec.  931. 

All  the  authorities  unite  in  holding  that  as  long  as  there  is 
an  intention  to  complete  the  work  there  could  be  no  abandon- 
ment, in  the  absence  of  any  clause  in  the  charter  or  statutes 
providing  a  specified  time  in  which  the  completion  must  be 
effected.  This  being  so,  the  mere  removal  of  the  rails  from 
the  right  of  way  would  not  operate  as  an  abandonment.  Of 
course  the  removal  of  the  rails,  bridges,  etc.,  from  the  right  of 
way  would  be  one  of  the  facts  tending  to  establish  an  abandon- 
ment, but  would  not  of  itself  be  sufficient.  Especially  would 
this  be  so  if  the  intention  of  the  railway  company  was  not  to 
abandon  it.  140  111.,  435;  i.  c.  30  N.  E.  Rep.,  686;  29  Iowa, 
276;  37  Ind.,  294;  137  Mass.,  48;  57  Iowa,  249. 

See  96  Ga. ,  385,  where  change  of  main  line  so  as  to  side- 
track a  town  was  not  allowed. 

Abandonment  of  depots  and  stations ;  right  of  company  to 

in  Certain  cases. — See  "Stations"  herein.     Refer  to  index. 


CHAPTER  LVII. 

CONNECTIONS— WITH  AND  BY  OTHER  ROADS. 

[See,  also,  Crossings.] 

Connections;  with  and  by  other  roads,  branches,  etc.— [In 

Tennessee.]  All  the  railroads  of  the  state  have  power  to  con- 
struct their  roads  so  as  to  cross  each  other,  if  necessary,  by  the 
main  trunks  or  branches,  or  to  unite  with  each  other  as  with 
branches.  Code  Tenn.  (M.  &  V.),  §  1249<//  Shannon's  code, 
§  1504. 

By  section  40  of  the  charter  of  the  Nashville,  Chattanooga  & 
St.  Louis  Railway,  power  is  given  any  individual  or  individuals, 
company  or  body  corporate,  with  permission  of  the  legislature 
of  the  State  of  Tennessee,  to  construct  branches  to  unite  with 


700  CONNECTIONS   WITH    OTHER    ROADS. 

the  Nashville  &  Chattanooga  Railroad.  The  section  also  sets 
oat  the  terms  and  conditions  upon  which  it  may  be  done.  See 
p.  23,  herein. 

Condemnation  for. — Section  1249«  of  the  code  of  Tennessee 
(M.  &  V. ;  Shannon's,  §  1504),  above  set  out,  is  a  general 
amendment  to  railroad  charter,  and  empowers  a  railroad,  whose 
charter  authorizes  it  to  condemn  land  for  a  right  of  way,  to  do 
so  for  the  purposes  of  this  section,  and  it  has  the  rights,  and  is 
liable  only  as  in  other  condemnation  cases,  under  §  1549  et  seq. 
of  the  code  (M.  &  V. ;  Shannon's  code  Tenn.,  §§  1844-1878); 
14  Lea,  65. 

[In  Alabama.  ]  ' '  Railroads  may  be  constructed  so  as  to  cross  or 
connect  with  each  other,  by  the  main  or  branch  tracks."  Code 
Ala.,  1896,  §  3466. 

Railroad  corporations  have  authority  to  cross  or  intersect  any 
railroad  or  street  railway,  and  if  such  crossing  or  intersection 
cannot  be  made  by  contract  or  agreement  with  the  corporation 
controlling  the  railroad  to  be  crossed,  or  with  which  an  inter- 
section is  to  be  made,  either  party  may  proceed,  in  accordance 
with  the  provisions  of  art.  1,  ch.  42,  of  this  code,  and  all  other 
laws  relating  to  the  condemnation  of  lands  for  public  use,  the 
provisions  of  which  are  hereby  made  applicable,  to  have  an  as- 
sessment and  ascertainment  of  the  damages  which  may  accrue 
to  such  corporation  or  person  by  reason  of  such  crossing  or  in- 
tersection. Code  Ala.,  1896,  §1165. 

Other  roads  have  right  to  connect  with  this. — By  acts  Ala.,  1849-50, 
No.  123,  granting  the  Nashville.  Chattanooga  &  St.  Louis  Railway  aright 
of  way,  it  was  specially  provided  that  all  railways  now  or  hereafter  to 
be  chartered  in  Alabama  should  have  the  right  to  connect  with  it.  See 
act  itself,  on  p.  55,  herein. 

[In  Georgia.]  Under  §  2167,  subsec.  6,  of  the  code  of  Ga., 
1895,  all  railroad  companies  of  Georgia  are  given  power  to 
"cross,  intersect,  or  join  or  unite  its  railroads  with  any  rail- 
road heretofore  or  hereafter  to  be  constructed,  at  any  point  in 
its  route,  or  upon  the  ground  of  any  other  railroad  company, 
with  the  necessary  turnouts,  sidings,  and  switches,  and  other 
conveniences  necessary  in  the  construction  of  said  road,  and 
may  run  over  any  part  of  any  railroad's  right  of  way  necessary 


GENERAL    POWERS   OF   THE    N.,    C.    *    ST.    L.    RY.  701 

or  proper  to  reach  its  freight  depot,  in  any  city,  town,  or  vil- 
lage through  or  near  which  said  railroad  may  run,  under  the 
limitations  hereinafter  named;  but  in  crossing  another  railroad, 
either  over,  under,  at  grade,  level,  or  otherwise,  it  shall  be  at 
the  expense  of  the  company  making  the  crossing,  and  in  such 
way  and  manner,  at  the  time  of  construction,  as  not  to  interfere 
with  said  railroad  in  its  regular  travel  or  business."  Code  Ga., 
1895,  §  2167,  subsec.  6. 

Again,  by  section  2213  of  the  same  code  it  is  provided  that 
"where  any  railroad  in  this  state  joins  another  at  any  point 
along  its  line,  or  where  two  of  such  roads  have  the  same  termi- 
nus, either  line,  having  the  same  gauge,  may,  at  its  own  ex- 
pense, join  its  track  by  proper  and  safe  switches  with  the 
other,  should  such  other  road  or  company  refuse  to  join  in  the 
work  and  expense."  Code  Ga.,  1895,  §  2213. 

This  section  does  not  confer  authority  on  railroads  to  run  through 
incorporated  cities  to  join  another  railroad.  74  Ga.,  659. 

Again,  by  section  2215  of  same  code  it  is  provided  that 
"should  any  railroad  company  refuse  to  allow  the  connecting 
switches  put  in  its  line  when  requested  under  section  2213,  it 
shall  and  may  be  lawful  for  the  other  road  seeking  such  con- 
nection to  proceed  to  procure  right  to  use  so  much  of  the 
franchise  of  the  former  as  may  be  necessary  for  such  purpose, 
in  the  manner  pointed  out  in  the  charter  of  the  Central  Rail- 
road &  Banking  Company  for  ascertaining  the  value  of  and 
paying  for  private  property  taken  for  use  of  said  road."  Code 
Ga.,  1895,  §2215. 

See  p.  61  herein  for  rights,  privileges,  etc.,  granted  Nashville,  Chat- 
tanooga <&  St.  Louis  Railway  by  state  of  Georgia. 

[In  Kentucky.]  See  82  Ky.,  541;  95  Ky.,  550.  By  §  768, 
sub.  sec.  5  of  code  of  Ky.,  1894,  all  railroads  of  Kentucky  are 
given  power  to  cross  any  railroad  in  the  state  on  terms 
therein  set  out.  By  §  769  of  same  code  they  are  allowed  to 
build  switches,  spur  tracks,  or  branches,  as  may  be  necessary 
to  conduct  its  business  or  develop  business  along  its  line  of 
road.  The  power  to  make  connections  may  possibly  exist  under 
this  section. 


702  CONSOLIDATION,    TERMS,    ETC. 

CHAPTER  LVIII. 

CONSOLIDATION— TERMS  AND  CONDITIONS. 

Power  to  consolidate  with  other  roads ;  terms  and  condi- 
tions.— [In  Tennessee.]  There  is  no  provision  in  the  charter 
of  the  company  upon  this  subject,  but  under  the  general  law 
of  the  State  of  Tennessee,  every  railway  corporation  existing 
under  a  general  or  a  special  law,  or  under  a  general  or  a  spe- 
cial law  of  any  other  state,  ratified  by  this  state,  and  having 
authority  to  operate  and  maintain  a  railroad  in  this  state,  shall 
have  power  to  consolidate  itself  with  any  other  railroad  cor- 
poration whose  road  shall  connect  with  or  intersect  the  road  of 
such  existing  railroad  corporation  or  any  branch  thereof.  Code 
Tenn.  (M.  &  V.),  §  1263;  ActsTenn.  1871,  ch.  69;  Acts  Tenn. 
1877,  ch.  72  (Shannon's  Code,  §  1522).  See  4  Pickle  (Tenn.), 
140. 

Agreement  tO  be  in  Writing.— The  agreement  of  consolida- 
tion shall  be  in  writing,  and  shall  set  forth  the  corporate  name 
agreed  upon,  and  the  terms  and  conditions  of  the  consolidation. 
Code  Tenn.  (M.  &  V.),  §  1264;  Acts  Tenn.  1871,  ch.  69; 
Acts  Tenn.  1877,  ch.  72  (Shannon's  Code,  §  1523). 

Approval  Of  Stockholders. — The  consolidation  shall  not  have 
effect  until  the  terms  and  conditions  of  the  agreement  shall 
have  been  approved  by  a  majority  of  the  stockholders  of  each 
of  the  consolidating  companies  at  a  regular  annual  meeting. 
Code  Tenn.  (M.  &  V.),  §  1265;  Acts  Tenn.  1871,  ch.  69; 
ActsTenn.  1877,  ch.  72;  Acts  Tenn.  1867-68,  ch.  72  [Shan- 
non's Code,  §  1524]. 

Must  first  pay  debt  due  State.— Before  the  consolidation 
shall  take  effect  the  companies  must  first  pay  off  all  indebted- 
ness due  the  state  for  bonds  issued  to  aid  in  the  construction  of 
the  road.  ActsTenn.  1871,  ch.  69,  sec.  2;  Acts  Tenn.  1877, 
ch.  72,  sec.  2. 

Agreement  to  be  recorded,  where.— The  agreement,  together 

with  the  evidence  of  the  stockholders'  approval,  shall  be  filed 


GENERAL  POWERS  OF  THE  N.t  C.  A  ST.  L.  RY.     703 

and  recorded  in  the  office  of  the  secretary  of  state.  Code  Tenn. 
(M.  &  V.),  §  1266;  Acts  Tenn.  1871,  ch.  69;  Acts  Tenn.  1877, 
ch.  72,  §  2. 

Rights  Of  creditors.— The  rights  of  creditors  of  the  consoli- 
dating companies  shall  in  no  wise  be  affected  or  impaired  by 
such  consolidation.  Code  Tenn.  (M.  &  V.),  §  1267  [Shan- 
non's Code,  §  1526]. 

Powers  Of  Old  Companies  go  tO  new.— The  corporation  so 
formed  shall  have  all  the  rights,  powers,  privileges,  immuni- 
ties and  franchises,  and  be  subject  to  all  the  duties  and  obliga- 
tions, not  inconsistent  with  the  provisions  of  this  article,  con- 
ferred and  imposed  by  the  laws  of  this  state  upon  such  compa- 
nies so  consolidating,  or  either  of  them.  Code  Tenn.  (M.  &  V.), 
§  1268;  (Acts Tenn.  1877,  ch.  72,  §3)  [Shannon's  Code,  §  1527]. 

Powers ;  What  they  are. — The  new  company  shall  have 
power: 

1.  To  fix  the  number  of  its  directors  and  the  time  of  their 
election. 

2.  To  fix  the  number,  names  and  duties  of  its  officers. 

3.  To  pass  by-laws  for  the  government  of  the  company  and 
the  management  of  its  affairs. 

4.  To  fix  the  amount  of  its  capital  stock,  which  shall  be  di- 
vided into  shares  of  $100  each. 

5.  To  issue  bonds  and  dispose  of  same  in  such  form  and 
denomination  and  bearing  such  interest  as  the  board  of  direct- 
ors may  determine,   and  to  secure  the  payment  thereof  by 
mortgage  of  every  and  all  the  property  and  franchises  of  said 
consolidated  company,  and  of  the  companies  from  which  it  was 
formed. 

6.  And  to  do  all  other  acts  and  things  which  the  said  com- 
panies  so  consolidating,  or  either  of  them,  might  have  done 
previously  to  such   consolidation.     Code  (M.    &  V.),   §1269; 
(acts,  1877,  ch.  72,  sec.  3)  [Shannon's  code,  §  1528]. 

The  acts  of  1881,  conferring'  the  power  to  make  mortgages  upon  all 
railway  companies,  in  very  broad  terms,  does  not  repeal  the  special 
limitations  imposed  by  the  acts  of  1877,  ch.  72,  upon  the  power  of  con- 
solidated railway  companies  to  make  mortgages  of  their  property.  4 
Pick.  140. 


704  CONSOLIDATION,    TERMS,    ETC. 

Exemption  from  taxation  not  transferred.— No  exemptions 

from  taxation  of  railroad  property  and  franchises  and 'capital 
stock  therein,  contained  in  railway  charters  or  other  railway 
laws  of  this  state,  shall  be  transferred  to,  or  conferred  upon, 
such  consolidated  company,  or  the  property  and  franchises 
and  capital  stock  therein  of  such  consolidation  of  railroads,  or 
of  the  property  appertaining  thereto  and  used  in  the  operation 
thereof.  Code  Tenn,  (M..  &  V.),  §1270  (acts  Tenn.,  1877, 
ch.  72,  sec.  3). 

The  act  of  1877,  ch.  72,  is  constitutional.     4  Pick.  141. 

Consolidation  of  railways  chartered  under  general  laws.— 

It  shall  be  lawful  for  any  railroad  corporation  existing  in  this 
state  under  a  general  law,  that  now  has  under  construction,  or 
proposes  to  construct  and  operate  and  maintain,  a  railroad  for 
the  transportation  of  persons  and  freight,  to  consolidate  itself 
with  any  other  railroad  corporation  that  has  under  construc- 
tion, or  proposes  to  construct  and  operate  and  maintain,  another 
railroad  for  the  transportation  of  persons  and  freights.  Acts 
Tenn.  1887,  ch.  188,  sec.  1  [Shannon's  code  Tenn.,  §1532]. 

Majority  of  stockholders  must  approve.— The  consolidation 

herein  provided  for  shall  not  have  effect  until  the  terms  and 
conditions  of  the  agreement  shall  have  been  approved  by  a 
majority  of  the  stockholders  of  each  of  the  consolidating  com- 
panies at  a  regular  annual  meeting,  or  at  a  called  meeting 
called  for  that  purpose.  Same,  sec.  2  [Shannon's  code  Tenn., 
§1533], 

Roads  must  not  compete  or  be  parallel.— The  terms  and 

provisions  of  this  act  shall  not  apply  to  corporations  whose 
proposed  railroad  line  or  lines  now  being  constructed  shall  run 
parallel  to  each  other,  or  in  any  wise  compete  with  each  other 
for  the  transportation  of  persons  and  freights  from  or  to  the 
same  points;  it  being  the  intention  to  apply  the  terms  and 
provisions  of  this  act,  and  extend  the  privileges  herein  granted, 
to  such  corporations  as  now  have,  or  may  hereafter  have, 
under  construction,  or  propose  to  construct,  such  railroad  lines 
as,  when  consolidated,  they  will  form  one  continuous  line,  or 
one  will  be  but  an  extension  of  another  or  others.  Same,  sec. 


GENERAL    POWERS   OF   THE    N. ,    C.    &   ST.    L.    RY.  705 

3  [Shannon's  code  Tenn.,  §§  1490,  1534].  See  also  actsTenn. 
1895,  ch.  152,  sec.  1. 

What  roads  may  consolidate;  conditions.— The  provisions 

of  this  act  shall  apply  to  railroads  under  construction,  or  pro- 
posed to  be  constructed,  which,  when  completed,  are  to  he  con- 
nected and  form  one -continuous  line  in  this  or  other  states; 
rri'i'ided,  That  the  part  of  the  road  so  consolidated  lying  in 
this  state  shall  be  subject  to  the  jurisdiction  of  the  state  in  its 
legislative  and  judicial  departments  to  the  same  extent  as  if  no 
such  consolidation  had  been  made.  Acts  Tenn.  1887,  ch.  188, 
sec.  4  [Shannon's  code  Tenn.,  §  1535]. 

[In  Alabama.]  By  acts  Ala.,  1891,  p.  970,  it  is  provided 
that  "  whenever  the  lines  of  any  two  or  more  railroads,  or  con- 
templated railroads,  chartered  under  the  laws  of  this  or  any 
other  state,  which,  when  completed,  may  admit  the  passage  of 
burden  or  passenger  cars  over  any  two  or  more  of  such  roads 
continuously  without  break  or  interruption,  such  companies 
are  authorized,  before  or  after  completion,  to  consolidate  them- 
selves into  a  single  corporation  in  the  manner  therein  set  out." 
Code  Ala.,  1896,  §§  1166,  1167,  1168,  1163,  sub.  sec.  11. 

(1)  As  the  method  of  consolidation,  terms,  etc.,  provided  therein  are 
quite  lengthj',  and  as  it  is  not  probable  that  the  Nashville,  Chattanooga 
&  St.  Louis  Railway  will  ever  avail  itself  thereof,  the  same  is  here  omit- 
ted, with  simply  a  reference  thereto. 

(2)  See  p.  55  herein  for  franchises,  etc.,  granted  by  Alabama  to  Nash- 
ville, Chattanooga  «fc  St.  Louis  Railway. 

[In  Georgia.]  By  acts  Ga.,  1892,  p.  51,  it  is  provided  that 
"any  railroad  company  incorporated  under  the  provisions  of 
this  article  shall  have  authority  to  sell,  lease,  assign  or  trans- 
fer its  stock,  property,  and  franchises  to,  or  to  consolidate  the 
same  with,  those  of  any  other  railroad  company  incorporated 
under  the  laws  of  this  or  any  other  state,  or  of  the  United  States, 
whose  railroad  within  or  without  this  state  shall  connect  with 
or  form  a  continuous  line  with  the  railroad  of  the  company  in- 
corporated under  this  law,  upon  such  terms  as  may  be  agreed 
upon;  and,  conversely,  any  such  corporation  organized  under 
the  provisions  of  this  article  may  purchase,  lease,  consolidate 
with,  absorb  and  merge  into  itself  the  stock,  property,  and 

45 


706  CONTRACTS. 

franchises  of  any  other  railroad  company  incorporated  under 
the  laws  of  this  or  any  other  state,  or  the  United  States,  whose 
railroad  within  or  without  this  state  shall  connect  with  or 
form  a  continuous  line  or  system  with  the  railroad  of  such 
company  incorporated  under  this  law,  upon  such  terms  as  may 
be  agreed  upon,"  etc.  Code  Ga.,  1895,  §2179. 

(1)  See  sees.  2173  and  2177  of  the  same  code  on  the  same  subject. 

(2)  See  p.  61  herein  for  franchises,  etc.,  granted  by  state  of  Georgia  to 
Nashville.  Chattanooga  &  St.  Louis  Railway. 

[In  Kentucky.]  By  the  Kentucky  law  it  is  provided  that  "  any 
two  or  more  companies  may,  unless  otherwise  provided  by  law, 
consolidate  into  a  single  company,  in  the  manner  provided  in 
article  1  of  this  chapter,  and  such  new  corporation  shall  possess 
all  the  powers,  rights,  and  franchises  conferred  upon  such  two 
or  more  corporations,  and  shall  be  subject  to  all  the  restrictions 
and  liabilities  and  perform  all  the  duties  imposed  by  the  pro- 
visions of  their  respective  charters  or  laws  of  organization  not 
inconsistent  with  this  law.  Code  Ky.,  1894,  §  770. 

1.  Under  sec.  201  of  the  constitution  of  Kentucky,  consolidations  of 
parallel  or  competing  lines  are  prohibited.     Code  Ky.,  1894,  p.  139. 

2.  Under  sec.  200  of  the  constitution  of  Kentucky,  the  consolidation  of 
a  domestic  with  a  foreign  corporation  does  not  make  such  corporation  a 
foreign  one.     Code  Ky.,  1894,  p.  139. 

3.  For  method  of  consolidation  of  railways,  see  code  Ky.,  1894,  §§555 
556,  et  seq. 


CHAPTER  LIX. 

CONTRACTS—  WHAT  MAY  BE  MADE— HOW  CORPORATE 
NAME  SIGNED  TO,  ETC. 

Charter  provisions  on  subject  of  contracts.— Under  section 

1  of  the  charter,  the  railway  is  given  power  to  make  contracts 
and  do  all  lawful  acts  properly  incident  to  a  corporation,  and 
necessary  and  proper  to  the  transaction  of  the  business  for  which 
it  is  incorporated.  Seep.  1,  herein. 

Same.    Contracts  not  to  exceed  what.— it  is  provided  by 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     707 

section  12  of  the  charter  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  p.  8,  herein,  "  that  the  board  of  directors  shall 
not  exceed  in  their  contracts  the  amount  of  the  capital  of  the 
corporation,  and  of  the  funds  which  the  company  may  have  bor- 
rowed and  placed  at  the  disposal  of  the  board,  and,  in  case  they 
should  do  so,  that  the  president  and  directors  who  may  be  pres- 
ent at  the  meeting  at  which  such  contract  or  contracts  so  ex- 
ceeding the  amount  aforesaid  shall  be  made,  shall  be  jointly 
and  severally  liable  for  the  excess,  both  to  the  contractor  or 
contractors  and  the  corporation;  Provided,  That  anyone  may 
discharge  himself  from  such  liability  by  voting  against  such 
contract  or  contracts,  and  causing  such  vote  to  be  recorded  on 
the  minutes  of  the  board,  and  giving  notice  thereof  to  the  next 
general  meeting  of  the  stockholders." 

Directors  are  not  mere  figureheads;  they  must  use  good  faith, 
care,  attention,  and  circumspection,  or  they  will  be  liable. 
They  are  individually  liable,  however,  only  for  such  specific 
debts  as  were  contracted  with  their  assent,  in  excess  of  the  paid- 
up  capital,  and  remain  unpaid  after  the  corporate  assets  are 
exhausted.  3  Pick.  (Tenn.),  60.  See,  also,  6  Bax.,  278;  11 
Pick.,  635. 

Same.    Contracts  binding  without  seal.— By  section  11  of 

the  same  charter  all  contracts  and  agreements  authenticated 
by  the  president  of  the  board  shall  be  binding  on  the  cdmpany 
without  seal,  or  such  other  mode  of  authentication  may  be  used 
as  the  company  by  their  by-laws  may  adopt. 

Deeds  to  land,  however,  must  have  seal  attached.  10  Pickle 
(Tenn.),  460. 

Contracts  void  if  beyond  scope  of  powers.— Contracts  of  a 

corporation  beyond  the  scope  of  the  powers  enumerated  in  its 
charter,  or  conferred  by  statute,  and  other  powers  not  fairly 
incidental  thereto,  are  unlawful  and  wholly  void,  and  cannot  be 
ratified  by  either  party;  and  no  performance  on  either  side  can 
give  it  validity  or  be  the  foundation  of  any  right  of  action 
upon  it.  139  U.  S.,  24  [35,  55]. 

Deeds;  contracts;  how  corporate  name  signed  to.— The 

proper  way  in  all  cases  to  sign  the  corporate  name  is,  "  Nash- 


708  CONTRACTS. 

ville,  Chattanooga  &  St.  Louis  Railway,"  per —  president; 

attest —  — secretary,  and  then  have  the  seal  attached,  and 
acknowledgments  made.  For  form  of  acknowledgment  see  p. 
628  herein. 

The  seal  is  not  essential  in  all  contracts  or  agreements,  but 
in  cases  of  mortgages,  deeds  to  real  estate,  etc.,  it  should  al- 
ways be  affixed  to  make  it  legal.  10  Pickle  (Tenn.),  460; 
Parker  v.  Bethel  Hotel,  12  Pickle  (Tenn.),  253. 

A  deed  purporting  to  be  executed  by  a  corporation  to  a 
trustee,  which  bears  the  signature  and  seal  of  the  president, 
with  the  suffix,  "President  of  D.  R.  Co.,"  is  not  the  deed  of 
the  corporation,  but  the  personal  act  of  the  president.  97  N. 
C.,  300;  88  Ky.,  272. 

Again,  it  has  been  held  that  ' '  when  the  conveyance  de- 
scribes the  grantors  as  a  corporation,  but  is  executed  by  the 
president,  under  his  own  name  and  seal,  it  is  not  the  deed  of 
the  corporation."  23  Am.  Dec.,  746,  note;  3  Wash.  Real 
Prop.,  294,  §573,  574. 

The  deed  of  a  private  corporation  is  ineffectual  at  common 
law  to  pass  the  legal  title  to  real  estate  which  recites  no  author- 
ity for  its  execution,  and  is  signed  by  an  individual  describing 
himself  as  president  of  the  corporation,  without  affixing  the 
corporate  seal,  and  which  purports  to  have  been  acknowledged 
by  him  personally,  and  not  by  the  corporation  through  him. 
10  Pickle  (Tenn.),  459;  vol.  34,  No.  2,  S.  W.  Rep.,  p.  209. 

The  conveyance  of  its  real  estate  is  one  of  the  most  solemn 
acts  of  a  corporation,  and  it  can  only  be  done  in  pursuance  of 
a  vote  of  the  corporation,  and  by  deed  executed  in  the  form 
and  mode  prescribed  by  law.  Thomp.  on  Corp.,  sec.  5096; 
94  Tenn.,  460;  29  S.  W.  Rep.,  726;  Parker  et  al.  v.  Bethel 
Hotel  Co.,  vol.  34,  No.  2,  S.  W.  Rep.,  209;  12  Pick.  (Tenn.), 
253. 

The  corporation,  however,  may,  by  proper  resolution,  em- 
power some  particular  officer  to  act  as  its  agent  in  such  matters. 

May  contract  with  other  railways  for  use,  enjoyment,  and 
operation  of  their  property  and  franchises,  or  any  part 

thereof. — For  conditions  and  terms,  see  acts  Tenn.  1887,  ch. 
198,  sec.  1,  as  set  out  herein  under  general  heading,  "Lease." 


GENERAL    POWERS   OF    THE    N.,    C.    <fe    ST.    L.     RY.  709 

Acknowledgments. — It  was  held  by  the  supreme  court  of 
the  United  States  that  "there  was  no  statutory  provision  in 
Tennessee,  at  that  time,  as  to  the  execution  or  acknowledgment 
of  deeds  by  corporations.  In  such  cases  the  officer  affixing  the 
seal  is  the  party  executing  the  deed,  within  the  meaning  of  the 
statutes  requiring  deeds  to  be  acknowledged  by  the  grantor." 
95  U'.  S.,  710;  24:544. 

Since  the  above  decision,  however,  the  legislature  has  passed 
an  act  (1899,  p.  364)  providing  a  form  of  acknowledgment. 
The  form  is  set  out  in  full  herein  on  page  628. 

Railways  may  contract  for  lease  and  conditional  sale  of 
rolling  stock,  equipments,  etc.— Acts  Tenn.  1885,  ch.  96. 

See  also  "Sales,''  herein. 


CHAPTER  LX. 

CORPORATE  NAME— HOW  CHANGED  AND  TO  BE  CHANGED. 

Corporate  name ;  hOW  Changed.— The  original  name  of  the 
corporation  was  "The  Nashville  &  Chattanooga  Railroad  Com- 
pany," but  was  subsequently  changed  to  the  "Nashville, 
Chattanooga  &  St.  Louis  Railway,"  May  30,  1873,  by  a 
decree  of  the  chancery  court  at  Nashville,  Tenn.,  under  the 
acts  of  Tenn.  18TO-1,  ch.  54,  p.  63,  as  per  minute  book  "X," 
pp.  222-4  in  said  court. 

This  was  clearly  within  the  power  of  the  chancery  court  at 
that  time  under  said  act.  1  Tenn.  Ch.  Rep.,  83,  95,  97;  3 
Bax.,  98.  See  also  12  Lea,  97,  103;  11  Lea,  3;  9  Lea,  380; 
1  Lea,  462. 

HOW  Change  Can  be  made  now.— Section  34  of  the  charter 
provides  that  "this  charter  shall  be  amendable  from  time  to 
time  by  the  legislature  whenever  the  president  and  directors 
shall  unanimously  petition  for  amendments,  specifying  in 
the  petition  the  nature  of  such  amendments;  and  when  such 
amendments  shall  be  adopted  by  the  legislature  and  submitted 


710  CROSSINGS,    GATES,    STOCK    GAPS,    ETC. 

to  the  directory,  and  be  accepted  and  adopted  unanimously  by 
the  president  and  directors,  they  shall  be  obligatory  on  the 
stockholders,  and  not  otherwise."  See  p.  21  herein.  It  is 
doubtful  whether  this  method  can  be  followed  now  under  the 
new  state  constitution  of  1870.  An  amendment,  however,  ac- 
cepted and  adopted  by  the  president  and  directors  unanimously, 
will  be  valid,  although  not  recommended  by  the  unanimous  pe- 
tition of  the  president  and  directors,  that  being  merely  direc- 
tory. 8  Bax.  (Tenn.),  108;  see  also  case  of  Rogers  v.  Nash- 
ville, Chattanooga  <&  St.  Louis  Railway,  decided  by  Judge 
Lurton  at  Cincinnati,  but  not  yet  reported. 

The  above  section  of  the  charter  is  the  only  law  bearing 
upon  the  subject,  as  the  legislature  of  the  state  of  Tennessee 
has  repealed  the  acts  of  1870-71,  ch.  54,  above  referred  to, 
and  failed  to  pass  another  in  lieu  thereof  authorizing  corpora- 
tions chartered  by  special  act,  as  was  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  to  change  their  names.  If  it  can- 
not be  done,  therefore,  under  the  above  section  of  the  charter, 
which  is  extremely  doubtful,  it  cannot  be  done  at  all. 

Corporations  chartered  under  general  acts  1875  may  change 
name. — See  acts  Tenn.,  1897,  p.  271,  which  seperseded  the  acts  of  1893, 
ch.  146,  which  latter  act  was  doubtless  unconstitutional. 

Who  to  sign  corporate  name  and  how.— [See  "Contracts " 

herein,  on  p.  706.] 


CHAPTER  LXI. 

CROSSINGS— POWER  TO  CROSS  RAILROADS.  HIGHWAYS,  WATER 

COURSES;    CONDITIONS— GATES,  STOCK  GAPS,  ETC.— 

RIGHT  OF  CITIES  AND  COUNTIES  TO  BUILD 

STREETS,  ROADS  AND   ALLEYS 

ACROSS  RAILROAD. 

[See  also  "Bridges,''  "Connections."] 

Power  granted  Nashville,  Chattanooga  &  St.  Louis  Railway 

tO  Cross  roadS,  Water  Courses,  etc.— [In  Tennessee.]     Section 


GENKKAL    I*OWERS   OF   THE    N.,    O.    A    ST.    L.     RY.  711 

22  of  the  charter  of  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  (p.  13  herein)  provides  that:  "The  said  company 
sluill  have  the  right,  when  necessary,  to  construct  the  road,  or 
any  branch  thereof,  across  or  along  any  public  road  or  water 
course;  l^iwided,  That  the  said  road  and  the  navigation  of 
such  water  course  shall  not  1x3  thereby  obstructed;  And  pro- 
vided further,  That  such  railroad  shall  not  be  located  so  near 
any  turnpike  road  as  to  injure  or  prejudice  the  interests  of  the 
stockholders  in  such  turnpike  road,  except  upon  such  terms  as 
may  bo  agreed  upon  by  the  president  and  directors  of  the  same 
on  behalf  of  the  stockholders."  Charter,  sec.  22,  p.  13 
herein. 

Bridges  over  water  courses. — See  chapter  on  "Bridges"  herein,  p. 
642. 

How  private  and  public  crossings  to  be  made.— Again,  by 

section  32  of  the  charter,  it  is  provided  that:  "Whenever,  in 
the  construction  of  said  road,  it  shall  be  necessary  to  cross  or 
intersect  any  established  road  or  way,  it  shall  be  the  duty  of 
the  company  to  construct  said  road  across  such  established  road 
or  way  so  as  not  to  impede  the  passage  or  transportation  of 
persons  or  property  along  the  same,  or,  where  it  shall  be  nec- 
essary to  pass  through  the  land  of  any  individual,  it  shall  bo 
their  duty  to  provide  for  such  individual  a  proper  wagon  way 
or  ways  across  said  road  from  one  part  of  his  land  to  the 
other."  Charter,  sec.  32,  p.  21  herein. 

Where  a  railroad  crosses  a  public  road  already  in  use  it 
must,  unless  relieved  by  statute,  not  only  restore  the  public 
road,  but  erect  and  maintain  perpetually  all  structures  and 
keep  up  all  repairs  made  necessary  by  such  crossing,  for  the 
safety  and  convenience  of  the  public.  3  Pickle  (Tenn.),  712. 
See,  also,  3  Head,  522,  and  1-t  Lea,  525,  which  holds  this  sec- 
tion valid  in  action  by  turnpike  company  to  enforce  contract. 
But  see  16  I^a,  300;  88  Ky.,  659. 

The  term  "public  road"  in  the  above  sections  of  the  char- 

45* 


712  CROSSINGS,    GATES,    STOCK    GAPS,    ETC. 

ter  does  not  embrace  the  streets  and  alleys  of  a  city.  3  Head, 
596. 

The  temporary  and  necessary  obstruction  of  navigation  in 
the  construction  of  a  bridge  is  not  unlawful  under  these  sec- 
tions, nor  within  the  prohibition  of  §  1527  of  the  Code  (Tenn.), 
(M.  &  V.).  6  Pickle,  638.  But  see  5  Sneed,  427. 

A  railroad  may  be  indicted  and  fined  for  obstructing  a  pub- 
lic highway  contrary  to  powers  in  their  charter.  3  Head, 
523.  See  Mills  on  Em.  Dom.,  sec.  44a,  for  discussion  of 
crossings. 

Power  of  other  railroads  to  cross  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  and  vice  versa.— All  the  rail- 
roads of  the  state  of  Tennessee  have  power  to  construct  their 
roads  so  as  to  cross  each  other,  if  necessary,  by  their  main 
trunks  or  branches,  or  to  unite  with  each  other  as  with  branches. 
Code  Tenn.  (M.  &  V.),  § 1249«  [Shannon's  Code  Tenn., 
§  1504]. 

For  method  of  condemning  crossing,  see  "  Eminent  Domain  "  herein. 
Refer  to  index.  See,  also,  14  Lea  (Tenn.),  65. 

Railroads  must  erect  and  maintain  crossings  at  public  high- 
ways.— All  persons,  companies,  corporations  or  syndicates 
owning  or  operating  a  railroad,  or  railroads,  in  the  state  of 
Tennessee  are  required  to  make  and  furnish  good  and  sufficient 
crossings  on  the  public  highways  crossed  by  them,  and  keep 
same  in  lawful  repair  at  their  own  expense.  Acts  Tenn.,  1889, 
p.  222,  ch.  119,  sec.  1.  [See  additional  act  below.] 

This  section  seems  simply  to  declare  what  was  previously  the  com- 
mon law.  It  does  not  require  that  the  railroad  should  erect  and  keep 
in  repair  crossings  that  were  made  necessary  by  public  highways  built 
subsequent  to  the  erection  of  the  railroad,  but  simply  requires  the  rail- 
way to  erect  and  keep  in  repair  all  crossings  on  the  public  highways 
crossed  by  them.  In  other  words,  the  highway  must  have  been  built 
before  the  railroad  to  hold  it  liable.  Mills  on  Em.  Dom.,  sec.  43;  24  N. 
J.  L.,  62;  76  111.,  447.  This  law  has  been  amended  however.  See  below. 

Punishment  for  failure.— A  failure  to  observe  and  fully 
comply  with  the  provisions  of  the  above  section  shall  subject 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.     L.     KY.         712« 

the  offender  to  a  tine  of  not  less  than  ten  nor  more  than  one 
hundred  dollars,  and  the  UTMIK!  juries  of  the  state  shall 
have  inquisitorial  }>owers  to  investigate  any  violations  of  the 
above  sections;  I^rovided,  This  act  shall  not  apply  to 
crossings  within  the  corporate  limit**  of  towns  or  cities. 
Same,  sec.  2. 

Must  grade  and  keep  in  repair  crossings,  how.— Hy  acts 

]>'.'!»,  p.  840,  it  is  provided  that  "every  company  or  corpora- 
tion or  person  operating  a  line  of  railroad  within  the  state  of 
Tennessee  shall  l>e  required  to  grade  to  a  level  with  the  rails 
of  said  railroad  and  to  keep  in  repair  every  public  road  cross- 
ing such  railroad  for  a  distance  of  ten  ( 10)  feet  on  each  side  of 
such  railroad  track  and  between  the  rails  thereof;  /WfvW<*/, 
That  the  provisions  of  this  act  shall  not  apply  within  the  limits 
of  any  city,  taxing  district,  or  incorporated  town.  Acts,  1899, 
ch.  356,  p.  840,  sec.  1. 

Penalty  for  failure.— That  the  failure  of  any  such  com- 
pany or  corporation  or  person  to  comply  with  the  require- 
ments of  section  1  of  this  act  shall  l>e  deemed  to  be  a  misde- 
meanor and  punishable  as  such.  Same,  sec.  '2. 

As  to  enlarging  bridges  or  crossings  considered.— Whether 

the  railway  is  bound  to  enlarge  and  extend  a  bridge  or  cross- 
ing it  was  compelled  to  originally  make,  if  by  increase  of  pop- 
ulation and  public  travel  it  Incomes  inadequate — question 
reserved.  3  Pick.  ^Tenn.  >,  720.  Hut  see  1(5  Lea  (Tenn.), 
300. 

Where  railroad  fails  to  erect  or  keep  in  repair.    Where 

a  railroad  fails  or  refuses  to  perform  its  duty  as  to  erecting 
and  keeping  in  repair  crossings  whore  it  is  its  duty  to  do  so, 
the  county  can  have  the  work  done  and  recover  the  reasonable 
cost  thereof.  3  Pick.  (Tenn.),  712. 

Does  not  apply  at  turnpike  crossings.— A  turnpike  which 

crosses  the  railway,  however,  must  keep  in  repair  crossing. 
3  Hax.  (Tenn.),  364. 


7126  CROSSINGS,    GATES,    STOCK    GAPS,    ETC. 

Private  Crossings. — "  Where  it  shall  be  necessary  to  pass 
through  the  land  of  any  individual,  it  shall  be  the  duty  of  the 
road  to  provide  for  such  individual  a  proper  wagon  way,  or 
ways,  across  said  road  from  one  part  of  his  land  to  the  other." 
Charter,  sec.  32,  p.  21  herein. 

Under  this  section,  as  no  election  is  given  the  land  owner,  it 
is  the  right  of  the  railway  to  determine  where  the  crossing 
shall  be  located.  51  N.  Y.,  568;  4  Am.  Ry.  Rep.,  259;  14 
Am.  Ry.  Rep.,  484;  Rorer  on  Railroads,  p.  494. 

In  the  exercise  of  this  right,  however,  regard  must  be  had 
to  the  convenience  of  both  parties,  and  such  a  location  must  be 
made  as  will  not  subject  the  proprietor  to  needless  and  unrea- 
sonable injury.  Same. 

Gates  and  fences  at  private  crossings.— By  sec.  i,  ch.  83, 

acts  1879,  it  is  made  a  misdemeanor  for  any  person  to  obstruct 
public  highways,  private  ways,  streets,  alleys,  sidewalks,  pub- 
lic grounds,  commons,  and  ways  leading  to  burying  places, 
churches,  schoolhouses,  etc.  Another  statute  declares  it  to  be 
an  indictable  nuisance  to  obstruct  public  highways,  private 
ways,  etc.,  to  burying  grounds.  CodeTenn.,  §  4913,  sub  sec. 
4;  (M.  &  V.)  §  5746,  sub.  sec.  4;  (Shannon)  §  6869,  sub. 
sec.  4. 

The  supreme  court  of  Tennessee  has  decided  that  a  railroad 
company  in  all  such  cases  is  under  no  legal  obligation  to  fence 
such  crossing  or  to  put  gates  or  bars  across  the  same,  but  was 
positively  inhibited  from  doing  so.  17  Pick.  (Tenn.),  197. 
Whether  this  decision  would  apply  to  a  private  crossing  erected 
by  the  railroad  company  for  the  convenience  of  a  landowner 
through  whose  farm  the  railroad  ran,  so  as  to  enable  him  to  go 
from  one  part  of  his  farm  to  the  other,  is  doubtful.  The 
question  is  now  before  the  supreme  court  in  the  case  of  J.  W. 
Greer  vs.  Nashville,  Chattanooga  &  St.  Louis  Railway,  ap- 
pealed from  Davidson  county,  and  will  doubtless  be  decided  at 
its  next  December  term,  1899. 


GENERAL    I'OWKKfl    OF    TIIK    N.,    C.    A    ST.     L.     BY.          7l2c 

Most  of  the  states  hold  that  railways  are  required  to  place  gates  or 
bars  across  private  crossings  and  keep  them  in  repair,  and  t  hut  if  the 
gates  are  left  open  or  bars  thrown  down  by  third  persons  without  the 
fault  of  the  railway  company,  it  cannot  be  held  liable  for  accidents 
therefrom.  43  111.,  119;  47  111.,  173;  54  la.,  540;  29  Ind.,  545;  Korcr  on  R. 
K.,  495;  11  Am.  &  Eng.  U.  II.  Cases,  491:  1(X)  Ind.,  301;  23  Am.  &  Eng.  R. 
R.  Cases,  200;  101  Ind.,  597;  10  N.  Y.,  476. 

Stock  gaps  or  cattle  guards  at  private  crossings.- In  all 

C.-IM-;  where  the  railroad  company  is  not  required  to  erect  gates 
or  bars  at  private  crossings,  it  will  l>e  required  to  put  in'  stock 
gaps  and  wing  fences,  so  as  to  prevent  stock  from  leaving  the 
private  crossing  and  going  up  or  down  the  railroad.  At  such 
private  crossings  at  which  it  can  erect  gates,  it  need  not  put  in 
stock  gaps. 

Stock  gaps  or  cattle  guards  on  unfenced  tracks.— "  Kach 

and  every  railroad  company  whose  unfenced  track  passes 
through  a  field  or  inclosure  is  hereby  required  to  place  a 
good  and  sufficient  cattle  guard,  or  stops,  at  the  points  of 
entering  such  field  or  inclosure,  and  keep  the  same  in  good 
repair."  Acts  Tenn.,  1881),  ch.  24S;  Shannon's  code  Tenn., 
§  1595. 

Applies  to  fields  hereafter  opened. — "  I"  ^ise  a  field  or  in- 
closure through  which  such  unfenced  railroad  track  passes 
shall  be  enlarged  or  extended,  or  the  owner  of  the  land  over 
which  such  unfenced  track  passes  shall  open  a  field  so  as  to 
embrace  the  track  of  such  railroad,  such  railroad  company  is 
hereby  required  to  place  good  and  sufficient  cattle  guards  or 
stops  at  the  margin  of  such  inclosure  or  fields  and  keep  the 
same  in  repair;  Provided,  Such  owner  shall  give  the  nearest  or 
most  accessible  agent  of  such  company  thirty  days'  notice  of 
such  change.  /</.,  £2;  Shannon's  code,  $  1590. 

Liable  for  all  damages  for  failure.— "Any  railroad  com- 
pany neglecting  or  refusing  to  comply  with  the  provisions  of 
§§  1595  and  1596  shall  be  liable  for  all  damages  sustained  by 
anyone  by  reason  of  such  neglect  or  refusal;  and,  in  order  for 
the  injured  party  to  recover  all  damages  he  has  sustained, 


CROSSINGS,    GATES,    STOCK    GAPS,     ETC. 

it  shall  be  only  necessary  for  him  to  prove  such  neglect  or 
refusal  and  the  amount  of  such  damages;  Provided,  Such  com- 
pany shall  not  be  liable  if  it  shall  be  shown  that  the  opening  of 
such  field  was  made  capriciously  and  with  intent  to  annoy  and 
molest  such  company."  Id. ,  §3;  Shannon's  code  Tenn., 
§1597. 

Right  of  cities  and  counties  to  condemn  crossings  over 
right  of  way  of  railways  for  streets,  roads,  alleys,  etc.— 

It  seems  to  be  well  settled  that  a  general  statutory  power,  con- 
ferred by  a  city  charter,  to  take  lands  for  public  streets,  alleys, 
etc.,  will  not  be  presumed  to  authorize  the  city  to  take  land 
already  lawfully  appropriated  for  a  depot  building  and  appur- 
tenances. 30  Minn.,  359;  15  N.  W.  Rep.,  684;  23  Minn., 
167;  14  Am.  &  Eng.  Railroad  Cases,  34;  91  N.  Y.,  552;  24 
N.  Y.,  345. 

Under  such  general  authority  to  lay  out  highways,  a  part  of 
the  right  of  way  of  a  railroad  cannot  be  taken  longitudinally, 
nor  can  the  way  be  laid  through  depot  grounds,  shops,  etc., 
which  are  devoted  to  special  uses  in  connection  with  the  road 
and  necessary  to  its  operation  and  in  constant  use  in  connection 
therewith.  39  N.  J.  L.,  28;  36  Conn.,  255;  30  Minn.,  359; 
91  N.  Y.,  552;  53  Ga.,  120;  Lewis  on  Em.  Doin.,  p.  352, 
sec.  266. 

It  has  been  held,  however,  that  a  slight  interference  with 
the  platform  of  a  depot  would  not  prevent  the  establishment 
of  a  highway  or  street.  46  N.  J.  L. ,  644. 

Same.    General  statutes  authorize  crossings,  however.— 

A  general  authority,  however,  to  lay  out  highways  and  streets 
is  sufficient  to  authorize  a  lay-out  across  the  right  of  way  of 
a  railway,  but  not  through  its  depot  grounds,  etc.  23  Ohio 
St.,  510;  49  Mo.,  480;  35  Minn.,  141;  24  N.  Y.,  345; 
Lewis  on  Em.  Dom.,  p.  351,  sec.  266;  Mills  on  Em.  Dom., 
sec.  46. 

This  right  to  make  the  crossing,    however,    must    be  en- 


GENKKAI,    I'OWKRS    OF   THE    N.,    C.    A    ST.    L.     RY.  713 

forced  in  strict  compliance  with  the  following  statutes  of 
Tennessee: 

To  open,  change,  or  close  roads.— All  applications  to  open, 

rli.-mge,  or  close  a  road  shall  l>e  made  by  written  j>etition, 
signed  by  the  applicant,  to  the  commissioner  of  the  district 
through  which  the  road  runs  or  is  asked  to  be  located,  sj>ecify- 
ing  'in  particular  the  changes  or  action  asked;  or,  if  the  road 
extends  into  two  or  more  districts,  or  is  the  dividing  line  be- 
tween districts,  then  to  the  commissioners  of  said  districts. 
Shannon's  code  Tenn.,  ^  1(520. 

Notice  to  interested  parties;  who  are.— No  road  shall  be 

opened,  changed,  or  closed  without  giving  at  least  five  days' 
notice  to  all  parties  interested  of  the  time  said  road  or  roads 
are  to  be  opened,  changed,  or  closed,  and  a  surveyor  or  civil 
engineer  may  be  employed,  if  necessary  to  locate  the  same. 
Landowners  and  those  controlling  land  touched  by  the  pro- 
posed highway  shall  be  deemed  interested  parties.  Shannon's 
code  Tenn.,  §  1621. 

Notice  when  landowners  are  nonresidents.— If  any  owner 

of  the  land  so  concerned  is  a  nonresident,  then  notice  to  his 
agent  or  attorney,  if  any  such  agent  or  attorney  resides  in  the 
county,  shall  be  sufficient.  If  there  be  no  such  agent  or  attor- 
ney, then  the  notice  shall  be  made  by  publication  for  four  con- 
secutive weeks  in  the  newspaper  having  the  greatest  circulation 
in  the  county,  the  last  publication  to  be  at  least  one  week  be- 
fore the  hearing.  Shannon's  code,  £  1622. 

Jury  Of  View  in  one  district.— Where  the  opening,  (Chang- 
ing, or  closing  of  a  public  highway  only  affects  one  commis- 
sioner's district  the  said  commissioner  shall  associate  with  him- 
self two  other  freeholders  of  said  district  whom  he  has  never 
consulted  u\*m  the  question  involved,  and  who  shall  l>e  in  no 
way  related  to  the  parties  affected  by  such  change,  closing,  or 
ojwning  of  said  highway,  and  who  shall  take  ami  subscril>e  to 
an  oath  Imfore  said  commissioner  to  act  without  favor  or  par- 
tiality in  the  matter,  whoso  oaths,  thus  subscribed,  shall  be- 
come part  of  the  record,  upon  appeal  l>cing  taken,  and  the  said 


714  CROSSINGS,    GATES,    STOCK    GAPS,    ETC. 

commissioner  and  two  freeholders  shall  constitute  a  jury  of 
view.  Shannon's  code,  §  1623. 

Damages,  hOW  paid. — Said  jury  shall  have  the  power  of  con- 
demnation and  to  assess  damages,  which  shall  be  paid  out  of 
the  general  funds  raised  for  county  purposes,  upon  the  order 
of  the  commissioner  on  the  county  judge  or  chairman  of  the 
county  court,  who  shall  issue  his  warrant  therefor,  if  he  ap- 
prove the  same.  Shannon's  code,  §  1624. 

Appeals. — Any  person  or  persons  considering  themselves 
aggrieved  by  the  action  of  the  jury  of  view  may  appeal  to  the 
next  quarterly  county  court,  and  from  there  to  the  circuit  and 
supreme  courts.  In  case  of  an  appeal  the  jury  of  view  shall 
forward  all  the  papers  in  the  case,  with  their  action  on  the 
same,  to  the  said  quarterly  court  appealed  to.  Shannon's 
code,  §  1625. 

Special  act  as  to  crossing  in  Nashville.— By  acts  1857-8, 

ch.  130,  the  Nashville,  Chattanooga  &  St.  Louis  Railway  was 
required  to  keep  a  watchman  at  the  crossing  at  the  depot  in 
Nashville,  which  act  is  set  out  herein.  See  p.  34,  and  note 
thereunder. 

[In  Alabama.]  Alabama  grants  Nashville,  Chattanooga  & 
St.  Louis  Railway  rights  of  Tennessee  charter. —  By  acts 

Ala.  1849-50,  No.  123,  set  out  herein  on  p.  56,  and  acts  Ala. 
1888-9,  p.  443,  set  out  herein  on  p.  59,  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  was  given  rights  of  Tennessee 
charter  as  to  certain  branches. 

Alabama  acts  as  to  crossing  other  roads.— All  railroads 

chartered  under  the  general  laws  of  Alabama  have  authority 
to  cross  or  intersect  any  railroad  or  street  railway,  and  if  such 
crossing  or  intersection  cannot  be  made  by  contract  or  agree- 
ment with  the  corporation,  association  or  person  having  and 
controlling  the  railroad  or  street  railway  to  be  crossed,  or  with 
which  an  intersection  is  to  be  made,  either  party  may  proceed, 
in  accordance  with  the  provisions  of  article  1,  chapter  42,  of 
this  code,  and  all  other  laws  relating  to  the  condemnation  .of 


GENERAL    POWERS    OF   THE    N.,    C.    A    ST.    L.    RY.  715 

lands  for  public  uses,  the  provisions  of  which  are  hereby  made 
applicable,  to  have  an  assessment  and  ascertainment  of  the  dam- 
ages which  may  accrue  to  such  corporation  or  person  by  reason 
of  such  crossing  or  intersection.  The  notice  required  by  sec- 
tion 1714  (3209)  may  be  served  on  any  agent  of  such  railroad 
corporation  in  the  county  where  the  proceedings  are  instituted. 
Code  Ala.,  1896;  §1165. 

Alabama  acts  as  to  crossing  navigable  streams,  public 

roads,  etc. — Railroads  chartered  under  the  general  laws  of  Ala- 
bama, are  authorized,  in  the  construction  of  their  roads,  to 
cross  navigable  streams  or  waters,  but  in  the  erection  and  con- 
struction of  bridges,  trestles,  or  other  structures,  must  not  im- 
pair the  navigation  of  such  streams'  or  waters;  and  the  corpora- 
tion is  also  authorized  to  use,  or  to  cross,  or  to  change  public 
roads,  when  necessary  in  the  building,  construction,  or  main- 
tenance of  its  roadway  or  track,  but  must  place  the  public 
road  used,  or  crossed,  or  changed,  in  a  condition  satisfactory  to 
the  authorities  of  the  counties  having  control  thereof;  but 
where  practicable  the  track  of  the  railroad  must  go  under  or 
over  the  public  roadway.  Code  Ala.,  1896  ;  §  1164. 

1.  For  Alabama  acts  authorizing  Nashville,  Chattanooga  &  St.  Louis 
Railway  to  build  bridge  over  Tennessee  river,  see  "Bridges"  herein, 
p.  642-3. 

2.  Duty  to  erect  highway  bridge  over  railroad  at  a  safe  elevation. 
87  Ala.,  708. 

3.  The  duty  to  put  crossings  in  order  a  corporate  duty,  and  pro- 
ceedings must  be  against  the  corporation.     97  Ala.,  105. 

Alabama  act  authorizing  counties  and  cities  to  open  roads, 

Streets,  etc.,  Over  railroads. — There  is  no  special  act  of  Ala- 
bama upon  this  subject,  but  the  authority  granted  to  counties 
and  cities  generally  to  open  roads  and  streets  is  sufficient  to 
authorize  a  lay-out  across  the  right  of  way  of  a  railway,  but 
not  through  its  depot  grounds,  etc.  23  Ohio  St.,  510;  49 
Mo.,  480;  35  Minn.,  141;  24  N.  Y.,  345;  Lewis  on  Em. 
Dom.,  p.  351,  sec.  266;  Mills  on  Em.  Dom. ,  sec.  46. 

As  counties  and  cities  of  Alabama  have  been  granted  this 
authority,  such  crossings  can  l>e  made,  but  the  provisions  of 
§  2445  et  aeq.  of  the  code  of  Alabama,  1896,  must  be  strictly 
followed. 


716  CROSSINGS,    GATES,    STOCK    GAPS,    ETC. 

Alabama  acts  as  to  cattle  guards  and  stock  gaps.— "Every 

person  or  corporation  operating  a  railroad  must  put  cattle 
guards  upon  such  railroad  and  keep  the  same  in  good  repair 
whenever  the  owner  of  the  land  through  which  the  road  passes 
shall  make  demand  upon  them  or  their  agents  and  show  that 
such  guards  are  necessary  to  prevent  the  depredation  of  stock 
upon  his  land."  Acts  Ala.  1886,  p.  163;  code  Ala.  1896, 
§  3480. 

[In  Georgia.]    Georgia  grants  Nashville,  Chattanooga  & 
St.  Louis  Railway  certain  franchises,  as  to  its  main  stem. 

See  p.  61  herein. 

Georgia  acts  as  to  railroads  crossing  each  other;  terms.— 

"Any  railroad  company,  heretofore  or  hereafter  chartered  by 
the  legislature  of  this  state,  shall  have  the  right  to  cross  any 
other  railroad  heretofore  or  hereafter  built  or  to  be  built  in 
this  state,  upon  the  following  terms:  They  shall  be  allowed  to 
cross  at  grade  points,  or  at  any  other  point  where  the  same 
shall  not  obstruct  the  other  road,  and  may  be  allowed  to  cross 
by  a  tunnel  or  bridge,  if  necessary,  said  tunnel  or  bridge  being 
made  absolutely  secure.  Code  Ga.,  1895,  §2219;  acts  1870, 
p.  428. 

See  also  the  following  sections  of  the  same  code:  t&  2167  (5)  (6),  2233. 
2227.  2243,  2246,  2228,  2231.  2172. 

Georgia  acts  as  to  keeping  up  crossings.— "All  railroad 

companies  shall  keep  in  good  order,  at  their  expense,  the  pub- 
lic roads  or  private  ways  established  pursuant  to  law,  where 
crossed  by  their  several  roads,  and  build  suitable  bridges  and 
make  proper  excavations  or  embankments,  according  to  the 
spirit  of  the  road  laws."  Code  Ga.,  1895  §2220;  acts  1838, 
Cobb,  95. 

1  It  will  be  noticed  that  this   section  seems  to  require  railways  to 
keep  in  good  order  public  roads  or  private  ways  where  crossed  by  them. 
In  other  words,  it  seems  the  public  roads  or  private  ways  must  have 
been  constructed  before  the  railroads  to  hold  them  liable.     If  the  rail- 
roads were  built  first  then  the  public  roads  could  not  be  crossed   by 
the  railroads,  but  the  railroads  crossed  by  them.     Mills  on  Emi.  Dom., 
\  43;  24  N.  J.  L.,  62;  76  111.,  447. 

2  This  duty  does  not  embrace  a  path  or  unfrequented  way.     72  Ga  , 
137. 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  KY.     717 

3  Applies  to  streets.     74  Ga.,  774. 

4  Railroad  not  required    to  build  bridges  for  crossings  not  public 
nor  private  ways,  nor  responsible  for  damages  on  account  of  bridge  nar- 
rower than  the  road  at  such  crossing.     08  Ga.,  446. 

Georgia  acts  as  to  right  of  counties  and  cities  to  build  road 
and  street  crossings  over  railroad.— There  is  no  specific  law 

authorizing  this  to  be  done  in  Georgia,  but  the  authority 
granted  to  counties  and  cities  generally  to  open  roads  and 
streets  is  sufficient  to  authorize  a  lay  out  across  the  right  of 
way  of  a  railroad,  but  not  through  its  depot  grounds,  etc. 
Mills  on  Em.  Dom.,  §46;  Lewis  on  Em.  Dom.,  p.  351;  §266; 
24  N.  Y.,  345;  23  Ohio  St.,  510;  49  Mo.,  480;  35  Minn., 
141. 

As  counties  and  cities  of  Georgia  have  been  granted  this 
authority,  such  crossings  can  be  made.  See  §  520  of  code  Ga., 
1895.  Also  acts  Ga.  1897,  as  set  out  in  acts  1896-7-8,  pp. 
110,  176. 

Georgia  acts  as  to  Western  &  Atlantic   Railroad.— By 

§  1022  of  the  code  of  Georgia,  1895,  it  is  provided  that  "  all  the 
public  road  laws  and  penal  laws  touching  the  roads  of  this  state, 
whether  to  obligate  or  protect,  apply  to  the  state  road  (Wes- 
tern &  Atlantic  Railroad),  unless  specially  excepted,  or  some 
other  provision  is  prescribed  in  lieu  of  some  one  or  more 
thereof." 

Western  &  Atlantic  Railroad.     For  franchises,  etc.,   of  Western   & 
Atlantic  Railroad,  see  p.  335,  et  seq.  herein. 

Georgia  acts  as  to  building  and  maintaining  crossings,  cat- 
tle guards,  etc.,  at  private  and  public  ways.— Every  railroad 

company  shall  be  required  to  build  and  maintain  at  its  own 
expense  good  and  sufficient  cattle  guards  on  each  side  of  every 
public  road  or  private  way  established  pursuant  to  law,  and  on 
the  dividing  line  of  adjoining  landowners,  where  the  railroad 
may  cross  such  public  roads,  private  ways,  or  dividing  lines, 
when  necessary  to  protect  said  lands.  Thirty  days'  written 
notice  to  build  such  cattle  guards  shall  be  served  on  any  agent  or 
officer  of  such  company  by  the  owner  of  the  lands  to  be  affected 
by  such  cattle  guards;  «aid  notice  shall  be  directed  to  said 
railroad  company,  and  contain  a  description  of  the  |H)int  where 


718 

such  cattle  guard  is  desired,  be  signed  by  the  said  landowner 
or  his  agent  or  attorney,  and  attested  by  some  officer  with 
a  seal;  a  certified  copy  of  the  same  being  prima  facie  evidence 
of  the  contents  of  the  original  notice.  Code  Ga.  1895,  §  2243. 

(1)  Under  this  section  landowner  must  show  necessity  for  cattle  guards 
before  he  can  recover  damages  for  want  of.     104  Ga.,  148. 

(2)  No  duty  to  build  save  at  public  roads  or  private  ways  legally  es- 
tablished.    104  Ga.,  602. 

Liability  for  failure. — If  the  railroad  company  shall  fail  to 
build  such  cattle  guards  within  thirty  days,  then  the  railroad 
company  shall  be  liable  to  the  owner  of  the  land  for  all  dam- 
ages resulting  from  the  failure  so  to  build;  and  for  each  day 
elapsing  after  the  thirty  days  have  expired,  until  the  said  cattle 
guard  is  built,  in  the  sum  of  twenty-five  dollars,  to  be  recov- 
ered by  said  landowner  in  any  court  having  jurisdiction  over 
the  same.  Code  Ga.  1895,  §  2244. 

Georgia  acts  requiring  additional  cattle  guards.— Whenever 

the  owner  of  any  lands  over  which  any  railroad  company  may 
have  acquired  the  right  of  way  may  desire  additional  cattle 
guards  other  than  those  provided  for  in  the  preceding  section, 
or  any  farm  crossing  on  his  land,  it  shall  be  the  duty  of  the 
railroad  company,  upon  written  notice  as  provided  in  the  pre- 
ceding section,  within  ten  days  after  the  service  of  the  said  no- 
tice, to  submit  to  the  landowner  or  his  agent,  if  to  be  found,  a 
written  estimate  of  the  cost  of  such  cattle  guard  or  farm  cross- 
ing; whereupon  the  said  landowner  or  his  agent,  if  satisfied  with 
the  same,  shall  pay  to  the  company  the  sum  so  estimated,  when 
the  company  shall  at  once  proceed  to  build  such  cattle  guards 
or  farm  crossings;  the  cost  of  the  farm  crossing  to  cover  only 
the  roadbed  of  the  said  railroad.  In  the  event  the  landowner 
and  the  company  cannot  agree  as  to  the  correctness  of  the  said 
estimate,  then  the  same  shall  be  determined  in  the  same  manner 
as  damages  for  right  of  way.  The  award  may  be  had  at  the 
instance  of  the  landowner,  or  his  agent,  as  well  as  at  the  in- 
stance of  the  railroad  company.  In  the  event  the  railroad 
company  shall  fail  to  comply  with  the  provisions  of  this  sec- 
tion, or  to  keep  in  good  repair  the  guards  or  crossings,  it  shall 
be  liable  for  all  damages  resulting  to  such  landowner  by  the 


GENERAL  POWERS  OF  THE  N. ,  C.  A  ST.  L.  RV.     719 

failure  to  build  or  keep  in  good  repair  such  cattle  guards  or 
farm  crossings,  to  be  recovered  in  any  court  having  jurisdic- 
tion thereof.  Code  Ga.  1895,  §  2245. 

(1)  See  notes  to  preceding  section. 

r.'i  No  duty  to  maintain  as  to  one  not  owning  land.     100  Ga,,  600. 

DOCS  not  affect  existing  laws.— Nothing  in  the  two  preced- 
ing sections  shall  be  construed  in  any  way  to  change  the  lia- 
bility of  railroad  companies  for  damages  to  live  stock,  or  to 
prevent  landowners  from  joining  their  fences  to  stock  gups,  or 
of  free  access  from  and  to  the  said  farm  crossing.  This  and 
the  two  preceding  sections  shall  not  apply  to  any  roads,  ways 
or  crossings  within  the  limits  of  any  incorporated  town  or  city. 
Code  Ga.  1895,  §  2246. 

[In  Kentucky.]  Kentucky  acts  as  to  railroads  crossing 
each  other. —  "Every  corporation  proceeding  to  construct  its 
road  in  or  through  any  county  shall  file  and  have  recorded,  at 
its  expense,  in  the  county  clerk's  office  of  such  county  a  map 
of  the  route,  showing  the  center  of  said  proposed  road,  and 
the  width  thereof;  and  if,  after  a  road  is  located,  it  is  desired 
to  change  its  location,  or  the  proposed  route  is  changed,  as  it 
may  be,  a  map  showing  such  change,  as  well  as  the  center  and 
width  thereof,  shall  be  filed  and  recorded,  at  its  expense,  in 
the  county  clerk's  office  of  the  county  in  which  the  change  is 
made.  If  the  proposed  route,  as  indicated  by  the  map,  crosses 
the  line  of  any  other  railroad,  notice  of  such  fact  shall,  before 
the  construction  of  the  road  is  commenced  near  the  point  of 
crossing,  be  given  to  the  railroad  commission,  who  shall  give 
notice'  to  the  corporation  whose  road  it  is  proposed  to  cross,  as 
well  as  the  other  corporation,  of  the  time  and  place  it  will  meet 
to  consider  the  question  of  approving  the  crossing,  if  objection 
be  made  thereto;  and  the  commission  may  determine  the 
manner  in  which  the  crossing  shall  be  made  to  protect  against 
accidents  thereat.  Code  Ky.  1894:,  §  767. 

Kentucky  acts  giving  power  to  cross  highways,  water 
courses,  streets,  railroads,  etc.;  terms.— Railroads  of  Ken- 
tucky have  power  "to  construct  their  roads  upon  or  across 
any  water  course,  private  or  plank  road,  highway,  street,  lane 


720  CROSSINGS,    GATES,    STOCK    GAPS,    ETC. 

or  alley,  and  cross  any  railroad  or  canal;  but  the  corporation 
shall  restore  the  water  course,  private  or  plank  road,  highway, 
street,  lane,  alley,  railroad  or  canal  to  its  former  condition,  as 
near  as  may  be,  and  shall  not  obstruct  the  navigation  of  any 
stream,  or  obstruct  any  public  highway  or  street,  by  cars  or 
trains,  for  more  than  five  minutes  at  any  one  time;  and  shall 
construct  suitable  road  and  street  crossings  for  the  passage  of 
teams  by  putting  down  planks  or  other  suitable  material  be- 
tween and  on  each  side  of  the  rails,  the  top  of  which  shall  be 
at  least  as  high  as  the  top  of  the  rails  of  such  road  or  street; 
and,  in  case  the  road  is  constructed  upon  any  public  street  or 
alley,  the  same  shall  be  upon  such  terms  and  conditions  as  shall 
be  agreed  upon  between  the  corporation  and  the  authorities  of 
any  city  in  which  the  same  may  be,  but  such  road  shall  not  be 
constructed  upon  any  public  street  or  alley  until  compensation 
shall  be  made  by  the  corporation  therefor  to  the  owner  of  the 
property  adjoining  such  street  or  alley,  and  opposite  where 
such  road  is  to  be  constructed,  either  by  agreement  or  in  the 
manner  provided  by  law."  Code  K}T.  1894,  §  687,  sub.  sec.  5. 

Kentucky  acts  as  to  stock  gaps;  where  to  be  erected.— 

"That  all  corporations  and  persons  owning  or  controlling  and 
operating  railroads  as  aforesaid  shall  erect  and  maintain  cattle 
guards  at  all  terminal  points  of  fences  constructed'  along  their 
lines,  except  at  points  where  such  lines  are  not  required  to  be 
fenced  on  both  sides,  and  at  public  crossings.  But  where 
there  is  a  private  passway  across  said  railroad,  the  landowner 
for  whose  benefit  it  is  kept  open  shall  bear  one-half  of  the  ex- 
pense of  cattle  guards  and  gates,  the  former  to  erect  the  gates, 
the  corporation  or  person  operating  the  railroad  to  erect  the 
cattle  guards."  Code  Ky.  1S94,  §  1793. 

Kentucky  acts  authorizing  counties  and  cities  to   open 
roads,  streets,  etc.,  over  railroads.— There  is  no  special  act  of 

Kentucky  upon  this  subject,  but  the  authority  granted  to  coun- 
ties and  cities  generally  to  open  roads  is  sufficient  to  authorize 
a  layout  across  the  right  of  way  of  a  railway,  but  not  through 
its  depot  grounds,  etc.  Mills  on  Emi.  Dora.,  sec.  46;  Lewis 


GENERAL    POWERS   OF   THE    N.,    C.    &    ST.    L.    RY.  721 

on  Emi.   Dom.,  sec.  266,  p.  351;   23  Ohio  St.,   510;  49  Mo., 
480;  35  Minn.,  141;  24  N.  Y.,  345. 

Application  for  opening  roads  shall  be  allowed  only  for  the  conven- 
ience of  traveling1  to  the  county  courthouse,  to  a  public  warehouse,  an 
established  town,  postottice,  landing,  ferry,  mill,  lead  or  ironworks,  the 
seat  of  government,  salt  works,  house  of  public  worship,  public  ceme- 
tery, poorhouse,  coal  or  iron  banks,  to  a  lock  or  dam.  to  an  oil  well, 
copper  or  other  mines,  a  stone  quarry,  sand  bank,  to  any  navigable 
river,  or  to  a  convenient  depot  on  a  railroad.  Code  Ky.  1804,  \  4288. 


CHAPTER  LXII. 

DEMURRAGE. 

[See  also  "  Freight  Charges/'  herein.] 

When  demurrage  may  be  charged.— [in  Tennessee.]     A 

railway  company  has  no  lien  upon  goods  for  demurrage  in  ab- 
sence of  contract  to  that  effect.  A  clause  providing  for  same 
must  be  put  in  bill  of  lading  in  order  for  railway  to  recover. 
15  Lea  (Tenn.),  261. 

For  right  in  Alabama,  Georgia,  and  Kentucky,  see  "  Freight  Charges,'' 
herein. 


CHAPTER   LXI1I. 

DIRECTORS  —  HO W    AND    WHEN    ELECTED —  QUALIFICATION- 
NUMB  ER— MEETINGS— PO  WERS-D  UTIES,    ETC. 

Directors;  how  elected. — Section  8  of  the  charter  of  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  provides  that  the 
affairs  of  the  company  shall  be  managed  by  a  board  of  direct- 
ors, who  shall  be  chosen  by  the  stockholders  from  their  own 
body.  See  p.  6  herein.  Section  20  of  the  charter  also  pro- 
vides that,  in  voting  for  directors,  the  stockholders  shall  vote 
in  person  or  by  proxy,  according  to  a  prescribed  scale  therein 

46 


722  DIRECTORS. 

set  out,  bnt  by  acts  Tenn.  1868-9,  ch.  2,  p.  83,  this  section 
was  amended,  and  the  amendment  accepted  by  the  company 
September  20,  1875,  so  as  to  provide  that  thereafter  "  in  all 
elections  held  by  the  company,  every  stockholder  shall  be  en- 
titled to  one  vote  for  each  share  of  stock  owned  by  him." 
See  p.  12  herein.  This  being  so,  in  the  election  of  directors, 
as  well  as  in  all  other  elections,  each  stockholder  is  now  enti- 
tled to  as  many  votes  as  he  has  shares  of  stock. 

No  stockholder  is  allowed  to  vote,  however,  in  any  general 
or  other  election  who  shall  not  have  held  in  his  own  right  the 

O 

shares  on  which  he  offers  to  vote  at  least  three  months  previous 
to  such  election.  Charter,  §  19,  p.  12  herein.  A  proper  con- 
struction of  the  above  section  would  require  that  the  stock- 
holder should  hold  his  stock  continuously  for  the  three  months 
preceding  the  election  in  order  to  vote.  If  the  day  of  annual 
election  should  pass,  however,  without  an  election  of  directors, 
the  corporation  shall  not  thereby  be  dissolved,  but  it  shall  be 
lawful  on  any  other  day  to  hold  and  make  such  elections  in 
such  manner  as  may  be  provided  by  by-law.  Charter,  §  9,  p. 
7  herein. 

1.  For  by-laws  on  this  see  following  heading: 

2.  Vote  to  be  taken;  how. — The  by-laws  provide  that  "all  elections 
for  officers  shall  be  by  ballot,  unless  by  unanimous  consent,  when  the 
vote  may  be  taken  viva  voce.     See  p.  647,  herein. 

When  elected. — Section  9  of  the  charter  provides  among 
other  things  that  the  first  meeting  of  stockholders  should  be 
held  at  Nashville,  Tenn.,  at  which  time  directors  should  be 
chosen,  and  the  persons  elected  directors  at  this  meeting  should 
serve  for  such  period,  not  exceeding  one  year,  as  the  stock- 
holders might  direct.  It  further  provided  that  at  said  meeting 
the  stockholders  should  fix  on  the  day  and  place  or  places 
where  the  subsequent  election  of  directors  should  be  held,  and 
that  such  elections  should  thenceforth  be  annually  made.  See 
p.  7  herein.  Subsequently  this  section  was  amended  by  acts 
Tenn.  1857-8,  ch.  8,  so  as  to  allow  the  stockholders  at  any 
meeting  to  fix  the  day  and  place  where  subsequent  elections 
should  be  held.  See  p.  7  herein. 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  KY.     723 

The  first  board  of  directors  were  elected  January  24,  1848.  Previous 
to  that  time  the  corporation  had  been  managed  by  the  board  of  commis- 
sioners. 

The  by-laws,  passed  December  14,  1898,  provided  that  "a 
general  meeting  of  the  stockholders  shall  take  place  annually 
on  the  Hrst  Wednesday  after  the  second  Tuesday  of  September, 
in  the  city  of  Nashville,  at  which  an  election  for  fifteen  di- 
rectors of  the  company  shall  be  held.  Notice  shall  be  given 
by  publication  in  one  or  more  of  the  newspapers  of  the  state, 
as  may  be  ordered  by  the  board  of  directors."  See  p.  646, 
herein. 

The  by-laws  also  provide  that  "should  the  time  fixed  for 
the  annual  election  of  directors  pass  without  an  election  being 
effected  the  same  may  be  held  on  such  subsequent  day  as  may 
be  designated  by  the  board  of  directors  or  by  the  stockholders 
at  a  general  meeting,  notice  of  which  election  shall  be  given  in 
the  manner  aforesaid.''  See  p.  646,  herein. 

For  remedy  where  president  fails  to  call  meeting  for  election,  see 
"  Elections,"  "  Meetings,"  herein.  Refer  to  index. 

The  by-laws  also  provide  that  "  in  all  cases  the  directors  for 
the  time  being,  and  the  officers  elected  by  them,  shall  continue 
in  office  until  their  successors  shall  be  elected.  See  p.  646 
herein. 

Vacancies  in  toard;  hOW  filled.— By  section  10  of  the  char- 
ter the  directors  are  empowered. to  fill  all  vacancies  which  may 
occur  in  the  board  during  tb,e  period  for  which  they  shall  have 
been  elected,  and  in  the  absence  of  the  president  may  till  his 
place  by  electing  a  president  pro  tempore.  See  p.  8  herein. 

By-law  on  subject. — The  by-laws  provide  that  "any  vacancies  that 
may  occur  in  the  board  from  any  cause  whatever  shall  be  filled  by  the 
board  by  the  election  of  a  person  to  fill  such  vacancy  as  provided  for  in 
section  10  of  the  charter."  See  p.  647,  herein. 

President  to  preside  at  board  meeting.    President  pro  tern., 

hOW  elected. — The  by-laws  also  provide  that  "the  president 
shall  preside  at  meetings  of  the  board,  preserve  order,  and  reg- 
ulate debate  according  to  the  usual  parlimentary  rules.  In  the 
absence  of  the  president,  a  chairman  pro  tempore  shall  be  ap- 
pointed by  the  board."  See  p.  649,  herein. 


724  DIRECTORS. 

Qualifications  Of  directors.— Section  eight  of  the  charter  pro- 
vides that  all  directors  in  the  company  shall  be  stockholders 
[but  by  actsTenn.,  1849-50,  ch.  266,  the  charter  was  amended 
so  as  to  allow  the  city  of  Charleston,  S.  C.,  to  appoint  two  of 
her  citizens  as  directors  to  represent  her  stock,  and  the  Georgia 
Railroad  and  Banking  Company  to  appoint  one  director  to  rep- 
resent its  stock];  they  shall  also  be  citizens  of  the  United  States 
and  bonafide  stockholders  in  their  own  right  of  at  least  forty 
shares,  which  they  shall  have  held  at  least  three  months  previ- 
vious  to  their  election.  Charter,  §  19,  p.  12,  herein. 

Under  this  section  they  must  have  held  their  stock  continuously  for 
three  months  preceding  the  election.  The  by-laws  provide  that  should 
any  person  be  elected  a  director,  who  is  at  the  time  ineligible  under  the 
charter,  the  place  of  such  person  shall  be  considered  vacant. 

Number  Of. — Section  eight  of  the  charter  provides  that  the 
number  of  directors  shall  be  fifteen,  which  number  is  still  ad- 
hered to.  Under  the  general  law,  however,  all  private  cor- 
porations are  allowed  to  increase  or  diminish  the  number  of 
directors  to  any  number  not  less  than  five,  upon  a  vote  of  the 
stockholders  representing  three-fourths  of  the  capital  stock. 
ActsTenn.,  1881,  ch.  119;  code  Tenn.  (M.  &  V.),  §1702; 
Shannon's  code,  §  2038. 

It  is  questionable  whether  the  said  acts  of  1881,  ch.  119,  would  apply 
to  railroads. 

Prior  to  this  time  all  railroads,  by  a  majority  vote,  were 
allowed  to  reduce  their  directors  to  a  number  not  less  than  six, 
and  such  vote  became  an  amendment  to  its  charter.  Acts 
Tenn.,  1868-9,  ch.  23. 

Again,  by  actsTenn.,  1859-60,  ch.  202,  provision  was  made 
for  a  reduction  of  the  number  of  directors  to  nine,  where  state 
aid  was  granted  and  company  agreed. 

The  by-laws  provide  for  an  election  of  fifteen  directors.  See  p.  646, 
herein. 

Meetings  Of  Board  ;  Regular.— The  by-laws  of  the  company 
provide  that  "Regular  meetings  of  the  board  shall  be  held  at 
the  office  of  the  company  in  the  city  of  Nashville,  Tenn.,  on 


•    I  NERAL    POWERS    OF   THE    N.,    C.    &    ST.     L.    RY.  725 

the  second  Tuesday  of  January,  April,  July,  and  October,  at 
11  o'clock  A.M.  See  p.  646,  647,  herein. 

Same.  Special  meetings.— The  by-laws  also  provide  that 
"Other  meetings  of  the  board  shall  be  held  on  the  call  of  the 
president,  as  the  business  of  the  company  may  demand.  Spe- 
cial meetings  may  also  l>e  held  at  the  request,  in  writing,  of 
any  three  members  of  the  board.  See  p.  647,  herein. 

Quorum ;  What  Constitutes.— The  by-laws  also  provide  that 
"Eight  members  shall  constitute  a  quorum  for  the  transaction 
of  business."1'  See  p.  647,  herein. 

1.  A  by-law  is  valid  that  provides  for  a  less  number  than  a  majority 
to  constitute  a  quorum.     Thompson  on  Corp.,  \  3921. 

2.  A  majority  of  the  entire  board  is  always  necessary  to  constitute  a 
quorum,  unless  the  charter,  articles  of  incorporation,  or  a  valid  by-law 
or  usage,  confers  that  power  upon  a  less  number.     7  Cow.  (N.  Y),  402  ; 
23  Barb.  (N.  Y.),  304,  308;  39  Mo.  App.,  453.     Thompson  on  Corp.,  §3913. 

Acts  at  board  meeting  without  quorum  voidable.— The  acts 

of  directors  done  without  a  legal  quorum  are  voidable  at  the 
election  of  the  corporation,  or  at  the  election  of  a  legally  con- 
stituted meeting  of  directors,  thereafter  held.  Thompson  on 
Corp.,  §  35)15.  See  11  Pick.  (Tenn.),  484-7. 

Directors  must  act  together  as  a  board.— in  all  matters 

involving  the  exercise  of  what  might  be  termed  a  legislative  or 
judicial  discretion,  and  which  the  directors  cannot  therefore 
delegate  to  others,  they  can  only  bind  the  corporation  by  act- 
ing together  as  a  board.  A  majority  of  them  cannot  under- 
take to  act  in  their  individual  names  for  the  board  itself,  and 
no  act  can  be  done  affecting  the  ownership  of  property,  except 
by  a  resolution  of  the  board  when  regularly  constituted,  called 
and  sitting  in  consultation.  Thompson  on  Corp.,  §  3905;  43 
N.  H.,  343;  4  Daly  (N.  Y.),  305. 

Individual  acts  may  be  ratified  by  quorum.— The  act*  of  any 

one  or  more  directors,  however,  though  illegal,  may  l>e  subse- 
quently ratified  by  the  quorum,  and  thus  Income  binding  upon 
the  corporation.  36  N.  H.,  252,  270;  36  Me.,  516;  13  Intl., 
58;  Thompson  on  Corp.,  §  3928.  The  quorum  must  be  legally 
assembled  and  acting  as  a  body,  however,  to  do  so.  22  Conn., 
335. 


726  DIRECTORS. 

Effect  of  the  disqualification  of  a  member  of  the  quorum.— 

"The  natural  conclusion  would  be  that  if,  for  any  reason,  one 
whose  vote  is  necessary  to  a  resolution  of  a  board  of  directors 
is  disqualified  from  sitting  and  voting,  the  resolution  will  be 
deemed  not  to  have  been  passed.  This  is  the  law  in  respect  of 
the  passage  of  resolutions  in  which  some  of  the  directors  are 
directly  and  personally  interested,  such  as  resolutions  concern- 
ing their  own  salaries.  84  N.  Y.,  190,  199;  1  R.  L,  312;  53 
Am.  Dec.,  624. 

"But  it  does  not  follow  from  this  that,  in  the  absence  of  a 
statute  so  providing,  what  would  disqualify  a  judge  of  one  of 
the  ordinary  judicial  courts  from  sitting  in  a  given  case,  will 
disqualify  a  director  or  trustee  of  a  corporation.  An  analogy 
has  been  rather  sought  in  the  case  of  ministerial  public  officers. 
Thus,  where  a  certain  prescribed  majority  of  the  governing 
committee  of  a  social  club  have  power  to  expel  a  member,  the 
fact  that  one  member  of  this  majority,  who  voted  for  the 
expulsion,  is  related  to  the  member  of  the  committee  or  club 
who  has  moved  for  the  expulsion,  does  not  render  the  resolu- 
tion of  expulsion  invalid."  15  Abb.  N.  C.  (N.  Y.),  14;  Thomp- 
son on  Corp.,  §  3919. 

What  is  a  quorum  in  case  of  unfilled  vacancies.— "it  is 

held  that  a  good  elective  assembly  cannot  be  had  without  the 
presence  of  such  a  number  of  persons  as  will  constitute  a  ma- 
jority of  the  entire  definite  number,  although  the  number  pres- 
ent may  constitute  a  majority  of  so  many  of  the  entire  number 
as  may  happen  at  the  time  to  be  surviving  and  existing,  other- 
wise, by  suffering  without  supplying  diminutions  of  their  num- 
ber, happening  through  death,  resignation,  or  otherwise,  the 
essential  constitution  of  the  body  might  be  changed. "  1  Barn. 
&  C.,  609;  Thompson  on  Corp.,  §  3917. 

A  majority  of  assembled  quorum  may  act— "if  the  quorum 

is  lawfully  assembled,  a  majority  of  its  members  may  act, 
unless  the  charter,  statute,  or  other  governing  instrument  pre- 
scribes differently."  Cowp.,  530,  538;  9  Barn.  &  C.,  648, 
851;  17  Am.  Dec.,  525;  12  Me.,  354;  12  Mass.,  189;  39 
Mo.  App.,  453;  23  N.  H.,  555;  55  Am.  Dec.,  207;  35  N.  H., 


GENERAL    POWERS   OF   THE    X. ,    C.    <fe    ST.    L.    RY.  727 

477;  Thompson  on  Corp.,  sec.  3914.     See  11  Pick.  (Tenn.), 

484-7. 

Manner  of  assembling  the  meeting.— "As  no  valid  corpo- 
rate act  can  be  taken  by  the  board  of  directors  at  a  special 
meeting  unless  it  has  been  diilv  and  legally  assembled  [76  Cal., 

O  •*  O          v 

153;  9  Am.  St.  Rep.,  187;  30  Pac.  Rep.,  1024;  96  Cal.,  73], 
It  follows  that  where  a  statute,  by-law,  or  other  governing 
instrument  directs  the  mode  of  assembling  a  special  meeting, 
any  corporate  action  taken  at  a  meeting  not  so  assembled  will 
be  voidable,  in  the  absence  of  unanimous  consent."  Thompson 
on  Corp.,  sec.  3935.  See  also  11  Pick.  (Tenn.),  480. 

When  notice  of  meetings  must  be  given,  and  kind.— "The 

circumstances  under  which  notice  of  meetings  must  be  given  in 
order  that  the  action  taken  thereat  shall  be  valid  may  be 
summed  up  as  follows:  If  the  meeting  is  a  stated  one,  the 
time  and  place  of  which  is  fixed  by  same  by-law  or  regulation, 
no  notice  of  it  is  necessary  (50  Cal.,  534);  but  where  it  is  a 
special  or  called  meeting,  all  the  members  must  be  notified  of 
it.  In  the  absence  of  statute,  by-law,  or  other  governing 
instrument  prescribing  the  manner  in  which  notice  shall  be 
given,  personal  notice  is  necessary,  and  it  will  not  be  sufficient 
to  leave  a  copy  of  a  written  notice  at  the  usual  place  of  res- 
idence of  a  director.  55  Ark.,  473,  s.c.  29  Am.  St.  Rep.,  60; 
18  S.  W.  Rep.,  759.  The  right  of  all  the  directors  to  notice 
is  founded  on  the  right  of  being  present  for  the  purposes  of 
consultation,  of  which  right  a  minority  cannot  be  arbitrarily  de- 
prived by  a  majority."  13  Pa.  St.,  133,  s.c.  53  Am.  Dec.,  450. 

It  follows  that  proceedings  at  a  special  meeting  held  by  a 
bare  majority  of  the  members  of  a  board  of  directors  of  a  cor- 
poration, without  notice  to  the  other  members,  are  void, 
although  all  those  present  voted  in  favor  of  the  action  taken, 
and  the  result  would  have  been  the  same  had  the  other  mem- 
bers been  present.  21  Or.,  573;  8.  c.,  Am.  St.  Rep.,  766;  28 
Pac.  Rep.  899. 

But  all  this  proceeds  upon  the  assumption  that  it  is  practi- 
cable to  give  notice;  and  it  has,  accordingly,  l>een  held  that  the 
action  of  the  majority  is  not  invalidated,  because  absent 


728  DIRECTORS. 

directors,  out  of  the  state,  failed  to  receive  notice  of  the 
meeting.  55  Conn.,  455  ;  s.  c. ,  3  Am.  St.  Rep.,  64  ;  12  Atl. 
Rep.,  874;  cited  by  Thompson  on  Corp.,  sec.  3936.  See  11 
Pick.  (Tenn.)  480-8. 

Notice  must  specify  object  if  extraordinary.— if  the  special 

meeting  is  not  called  for  ordinary  transactions,  the  object 
thereof  must  be  incorporated  in  the  notice.  Id. 

Notice  of  adjourned  meetings  must  be  given.— Adjourned 

meetings  are  special  meetings,  and  members  not  present  when 
the  adjournment  took  place  must  be  notified.  Thompson  on 
Corp.,  sec.  3937. 

Meetings  OUtside  Of  State. — The  meetings  of  directors  in 
the  absence  of  anything  to  the  contrary  in  the  by  laws,  char- 
ter, or  general  law  of  the  land,  may  be  held  in  the  state,  or  out 
of  the  state,  wherein  the  corporation  resides,  or  is  organized, 
and  their  acts,  if  otherwise  binding,  will  be  valid,  for  they  are 
not  the  corporate  body,  and  do  not  sit  as  such.  6  Conn.,  458; 
34  N.  Y.,  208;  38  Barb.,  574;  63  Barb.,  415;  4  Stew.,  117; 
45  Ga.,  34;  35  Mo..  13;  Rorer  on  Railroads,  p.  211;  Thomp- 
son on  Corp.,  sec.  3933. 

Proceedings  at  stockholders'  meetings  are  also  binding  upon  all  those 
participating,  though  held  without  call  or  notice,  and  outside  of  the 
state  where  the  company  was  incorporated,  if  there  is  no  statutory 
restriction  of  corporate  actions  to  the  limits  of  the  state.  139  U.  S.,  417 
[35:229]. 

Voting;  Cannot  be  by  proxy.— A  director  cannot  delegate 
his  power  to  vote  in  the  board  by  giving  a  proxy  to  another 
person.  He  must  be  present  in  person  for  the  purpose  of  con- 
sultation. 59  Hun.  (N.  Y.),  561;  14  X.  Y.  Supp.,  16;  s.  c., 
36  N.  Y.  St.  Rep.,  923;  Thompson  on  Corp.,  sec.  3909. 

By  the  old  by-laws  of  the  company  any  member  of  board  might 
require  ••  ayes  and  noes,"  and  record  it  on  the  minutes.  This  has  been 
repealed  by  those  passed  Dec.  14.  18(.i3.  See  p.  646.  et  seq.,  herein. 

Directors  not  exempt  from  military,  road,  and  jury  duty.— 

By  sec.  35  of  the  charter  the  directors  of  the  railway  were  ex- 
empt from  military  duty,  serving  on  juries,  and  working 
on  public  roads.  Charter,  sec.  35.  See  p.  22,  herein. 

This  section,    however,   was  declared  class  legislation,  and 


GENERAL   POWERS   OF   THE    N. ,    C.    A   ST.    L.    RV.  729 

void  in  Tennessee.  4  Lea,  316.  Also  in  Alabama.  01  Ala., 
70. 

Duties  and  liabilities  of  directors.— The  board  of  directors 

shall,  once  in  every  year  at  least,  make  a  full  report  on  the  state 
of  the  company  and  its  affairs  to  a  general  meeting  of  the 
stockholders,  and  oftener  if  directed  by  a  by-law,  and  shall  have 
power  to  call  a  general  meeting  of  the  stockholders  when  the 
board  may  deem  it  expedient.  Charter,  sec.  18.  They  shall 
use  good  faith,  care,  attention,  and  circumspection  in  the  man- 
agement of  the  affairs  of  the  company.  They  shall  not  exceed 
in  their  contracts  the  amount  of  the  capital  of  the  corporation 
and  of  the  funds  which  the  company  may  have  borrowed  and 
placed  at  the  disposal  of  the  board,  and  in  case  they  should  do 
so,  the  president  and  directors  who  may  be  present  at  the 
meeting  at  which  such  contract  or  contracts  so  exceeding  the 
amount  aforesaid  shall  be  made  shall  be  jointly  and  severally 
liable  for  the  excess,  both  to  the  contractor  or  contractors 
and  to  the  corporation;  but  any  one  may  discharge  himself 
from  such  liability  by  voting  against  such  contract  or  contracts, 
and  causing  such  vote  to  be  recorded  on  the  minutes  of  the 
board  and  giving  notice  thereof  to  the  next  general  meeting  of 
the  stockholders.  Charter,  sec.  12.  See  11  Pick.  (Tenn.), 
635,  136.  The  directors  are  individually  liable,  however, 
only  for  such  specific  debts  as  were  contracted  with  their  assent 
in  excess  of  the  paid-up  capital  and  remain  unpaid  after  the 
corporate  assets  are  exhausted.  3  Pick.,  60.  See  also  6  Bax., 
278;  11  Pick.  (Tenn.),  635;  8  Pick.  (Tenn.),  598;  4  Lea 
387.  The  diversion  of  funds  to  other  objects  than  those  men- 
tioned, the  payment  of  dividends  which  leave  insufficient  funds 
to  meet  liabilities,  the  keeping  of  false  books,  the  making  and 
publishing  of  false  reports,  are  misdemeanors,  and  also  subjects 
those  actively  concerned  in  the  same  to  damages.  Code  Tenn. 
(M.  &  V.),  §  1716-17;  [Shannon's  code  Tenn.,  §  2067-68.] 

Directors  are  trustees  for  the  stockholders,  and  as  such  cannot  create 
any  relation  which  will  make  their  personal  interests  antagonistic  to 
those  of  the  corporation.  Nor  are  they  allowed  to  make  any  profit  out 
of  their  trust,  and  should  tlu-y  do  so  they  will  be  liable  to  the  company 
for  secret  profits.  8  Bax.,  108;  Thomp.  on  Corp.,  sec.  4024;  103  U.  S.,  651; 


730  DIRECTORS. 

21  Wall.,  617;  7  Wai.,  299;  14  Mich.,  477;  59  Maine,  277;  9  Yer.  (Term.), 
490;  10  Yer.  (Tenn.),  197. 

Liability  of  directors,  how  enforced. — Directors'  liability  must  be  en- 
forced by  general  creditors'  bill,  unless  company  sues.  9  Pick.  (Tenn.), 
377;  5  Pick.,  630. 

Powers.    May  pass  by-laws,  rules  and  regulations.— By 

acts  Tenn.,  1847-8,  ch.  70,  which  were  passed  and  accepted  by 
the  company  as  an  amendment  to  its  charter,  the  directors  have 
power  to  pass  all  regulations,  rules,  and  by-laws,  as  may  be 
necessary  for  the  government  of  the  corporation  and  the  trans- 
action of  its  business,  and  were  given  power  to  appoint  three 
judges  and  two  clerks,  from  year  to  year,  for  purpose  of  hold- 
ing election  of  directors.  Directors,  however,  have  no  right 
to  pass  by-laws  that  will  deprive  the  stockholders  of  those  fun- 
damental powers  whereby  they  control  the  officers  of  the  cor- 
poration. Thompson  on  Corp.,  sec.  3973. 

May  fill  vacancies  in  board. — They  may  fill  all  vacancies 
which  may  occur  in  the  board  during  the  period  for  which  they 
shall  have  been  elected,  and  in  the  absence  of  the  president  may 
fill  his  place  by  electing  a  president  pro  tempore.  Charter, 
sec.  10,  p.  8,  herein. 

See  also  by-laws  to  same  effect,  p.  647,  herein. 

May  mortgage  property,  when. — [See  Mortgage;  Bonds]. 
May  call  general  meeting  of  stockholders  when  expedient— 

The  directors  shall  have  power  to  call  a  general  meeting  of  the 
stockholders  when  they  may  deem  it  expedient.  Charter, 
sec.  18,  p.  11,  herein. 

May  lease  roads. — By  acts  Tenn.,  1857-8,  ch.  8,  p.  5,  the 
charter  was  amende;!  so  as  to  empower  the  company  to  lease 
any  railwa}r  connecting  with  it,  for  such  time  and  upon  such 
terms  and  conditions  as  may  be  agreed  upon  between  the  presi- 
dent and  directors  of  the  company,  and  the  president  and 
directors  of  the  railroad  company  contracted  with.  [See 
notes  under  "Lease"  for  discussion  of  this  amendment  and 
heading]. 

It  will  be  seen  from  the  discussion  herein,  under  "  Leases,"  above  re- 
ferred to,  that  it  is  now  doubtful  whether  or  not  this  act  is  operative. 

Declare  dividends. — The    profits    of    the    company,     or   so 


GENEKAI.    roWKRS   OF   THE    N.,    C.    A   ST.    L.    RY.  731 

much  thereof  as  the  board  of  directors  may  deem  advisable, 
shall,  when  the  affairs  of  the  company  will  permit,  be  semi- 
annually  divided  among  the  stockholders  in  proportion  to  the 
stock  each  may  hold.  Charter,  sec.  30.  [See  also  "Divi- 
dends"]. 

The  above  section  was  amended  by  the  acts  Tenn.  1847-8, 
ch.  70,  §  3,  so  that  the  company  should  be  required  to  estimate 
and  pay  semi-annually  to  the  several  holders  thereof  a  sum 
equal  to  six  per  cent  per  annum  on  the  capital  stock  actually 
paid  in,  to  be  charged  to  the  cost  of  construction;  provided,  a 
majority  of  the  stockholders  at  their  first  regular  meeting 
agreed  thereto.  This  was  accepted  and  held  good  in  8  Lea 
(Tenn.),  427. 

May  elect  president,  permanent  and  pro  tempore.— The 

president  of  the  company  shall  be  elected  by  the  directors, 
from  among  their  own  members  in  such  manner  as  the  regula- 
tions of  the  corporation  shall  prescribe.  Charter,  sec.  8.  Pro 
tempore.  In  the  absence  of  the  president  the  directors  may 
fill  his  place  by  electing  a  president  pro  tempore.  Charter, 
sec.  10,  p.  8,  herein. 

See,  also,  p.  647,  herein,  for  by-laws  to  same  effect  on  subject. 

To  manage  the  affairs  of  company.— The  affairs  of  the  com- 
pany shall  be  managed  by  a  board  of  directors.  Charter, 
sec.  8,  p.  6,  herein. 

May  allow  lateral  roads  to  be  built  within  twenty  miles.— 

No  road  may  be  built,  running  laterally  within  twenty  miles  of 
the  route  adopted  by  this  company,  without  the  consent  of  the 
board  of  directors.  Charter,  sec.  13,  p.  !),  herein. 

To  act  as  trustees  in  case  of  dissolution.— If,  by  decree  or 

otherwise,  the  said  corporation  shall  be  dissolved,  the  president 
and  directors  are  created  trustees,  with  such  powers  only  as  may 
be  necessary  to  collect  the  debts  due  the  company,  preserve  the 
property,  pay  the  debts,  and  distribute  the  property  and  effects 
to  those  who  may  be  entitled  thereto  under  the  charter.  Char- 
ter, sec.  37,  p.  22,  herein. 

May  borrow  money. — A  general  power  granted  to  the  direc- 
tors to  manage  the  affairs  of  the  corporation  includes,  accord- 


732  DIRECTORS. 

ing  to  the  American  view,  the  power  to  borrow  money  when 
necessary  in  the  course  of  its  business.  6  Ex.,  796;  33  L.  J.  (N. 
S.)  238;  cited  by  Thompson  on  Corp.,  §  3988. 

May  appoint  judges  and  clerks  of  all  stockholders'  elections 

for  directors. — The  board  of  directors  of  said  company  shall 
have  power  to  appoint  three  judges  and  two  clerks,  from  year 
to  year,  for  the  purpose  of  holding  elections  of  directors. 
Acts  Tenn.,  1847-8,  ch.  70,  §  2. 

May  make  and  transfer  negotiable  paper.— The  power  to 

borrow  includes,  by  a  natural  implication,  the  power  to  emit 
those  evidences  of  indebtedness  which  are  customary  in  the  bus- 
iness world.  Hence,  the  directors  have  the  power  to  make, 
accept,  or  assign  negotiable  paper  in  the  course  of  the  business 
of  the  corporation.  Thompson  on  Corp.,  §3989;  6  Hum. 
(Tenn.),  516;  9  Hum.,  264;  11  Hum.,  22;  2  Cold.,  655;  7 
Heis.,  288;  9  Heis.,  524,  533. 

May  petition  for  amendments  to  charter.— Section  34  of 

the  charter  provides  that  the  charter  shall  be  amendable  from 
time  to  time  by  the  legislature,  whenever  the  president  and 
directors  shall  unanimously  petition  for  amendments,  specifying 
in  the  petition  the  nature  of  such  amendments,  and  that  when 
such  amendments  shall  be  adopted  by  the  legislature  and  sub- 
mitted to  the  directory  and  be  accepted  and  adopted  unani- 
mously by  the  president  and  directors,  they  shall  be  obligatory 
on  the  stockholders,  and  not  otherwise.  See,  also,  §  1695  of 
Code  (M.  &  V.),  which  allows  directors  to  petition  for  amend- 
ments to  change  the  name,  increase  the  capital  stock,  or  obtain 
other  powers  therein  set  out.  [Shannon's  Code,  §  2028]  (Tenn.) 
It  is  doubtful  whether  this  can  be  done  novv  under  said  section 
34,  of  the  charter,  since  our  state  constitution  of  1870. 

Implied  powers. — A  corporation  has  implied  power  to  do  all 
acts,  and  to  use  all  power  necessary  to  the  use  of  the  powers 
and  privileges  conferred  by  the  charter  or  the  organic  law  of 
the  land.  2  Pick.  (Tenn.),  598;  1  Pick.  (Tenn.),  703. 


GENERAL    POWERS   OF   THE    N.,    C.    &    ST.    L.    BY.  733 


CHAPTER  LXIV. 

DISSOLUTION— HOW  DISSOLUTION  MAY  BE  EFFECTED— DIRECT- 
ORS TRUSTEES  IX  CASE  OF. 

Directors  to  be  trustees  in  case  of  dissolution.— if,  by 

decree  or  otherwise,  the  corporation  shall  be  dissolved,  the 
president  and  directors  of  said  company  are  created  trustees, 
with  such  powers  only  as  may  be  necessary  to  collect  the  debts 
due  the  company,  preserve  the  property,  pay  the  debts,  and 
distribute  the  property  and  effects  of  the  company  to  those 
who  may  be  entitled  thereto  under  the  charter.  Charter,  sec. 
37,  p.  22  herein. 

It  is  unnecessary  to  give  the  laws  of  Alabama,  Georgia,  and  Kentucky 
on  this  subject,  as  this  company  has  never  been  chartered  in  those  states. 

HOW   Company   may   be   dissolved.— [See   general    heading, 
" Charter,7'  subhead,  "Forfeiture  of,"  p.  695,  et  seq.,  herein. 

Corporations  may  exist  after  forfeiture  or  dissolution,  for 
certain  purposes,  for  five  years.— By  the  acts  of  Tenn.  1887, 

p.  328,  §§  1720-and  1721  of  the  code  of  Tenn.  (M.  &  V.)  were 
so  amended  as  to  allow  all  corporations  whose  charters  expire, 
or  have  expired,  by  their  own  limitation,  or  are  annulled  by  for- 
feiture or  dissolved  for  any  other  cause,  to  exist  as  a  corporation 
for  the  term  of  five  years  after  said  expiration  or  dissolution, 
for  the  purpose  of  prosecuting  or  defending  suits  by  or  against 
them,  settling  their  business,  disposing  of  their  property,  and 
dividing  their  capital  stock;  and  that  all  such  corporations 
shall,  during  the  term  of  rive  years  mentioned,  but  no  longer, 
possess  all  the  powers,  rights,  and  privileges  conferred  upon 
them,  and  shall,  during  -udi  period,  U-  subject  to  all  penalties 
and  restrictions  of  their  original  charter.  Acts  Tenn.  1887, 
p.  328. 


734  DIVIDENDS. 

Acts  that  do  not  work  dissolution.  Failure  to  elect  direc- 
tors.— If  the  day  of  annual  election  of  directors  should  pass 
without  any  election  of  directors,  the  corporation  shall  not 
thereby  be  dissolved,  but  it  shall  be  lawful  on  any  other  day 
to  hold  and  make  such  elections  in  such  manner  as  may  be 
prescribed  by  a  by-law  of  the  corporation.  Charter,  sec.  9, 
p.  7  herein.  See  also  code  (M.  &  V.)  §4168  (Tenn.). 

Same.  Nonuser  Of  franchise. — The  mere  nonuser  alone  of  a 
franchise  does  not  work  dissolution.  10  Lea,  436,  443;  8 
Bax.,  235;  7  Cold.,  420;  code  Tenn.,  §3431;  (M.  &  V.), 
§§4168,  1712;  15  Lea,  104,  110;  40  N.  J.  Eq.,  427;  87  Mo., 
95;  12  Pick.  (Tenn.),  253. 

Same.  Miscellaneous. — A  corporation  is  not  dissolved  by 
insolvency,  nor  by  the  sale  or  assignment  of  all  its  property, 
nor  by  the  appointment  of  a  receiver.  12  Pick.  (Tenn.),  252; 

2  Pick.  (Tenn.),  614.     Nor  by  a  failure  to  elect  officers.      10 
Lea  (Tenn.),  443;  4  Cold.  (Tenn.),  96;   10  Yer.  (Tenn.),  218; 

3  Hum.    (Tenn.),    522;    code  Tenn.   (M.    &  V.),    §4168;    86 
Tenn.,    614,    628;    12  Pick.  (Tenn.),   252.     Nor  by  the  fact 
that  all  the  shares  are  owned  by  one  man.      12  Pick.  (Tenn. ),  252. 

In  Georgia  a  dissolution  may  be  by  forfeiture  of  charter  and 
misuser  of  franchise.  100  Ga. ,  147. 

Right  to  remove  rails,  bridges,  etc.,  from  right  of  way  in 

Case  Of  dissolution. — See  similar  heading  herein,  under  "Em- 
inent Domain,"  also  under  "Right  of  Way." 

Right  to  remove,  tear  down,  or  abandon  stations  without 

working   forfeiture  Or  dissolution.— See   "Stations"    herein. 
Refer  to  index. 


CHAPTER  LXV. 

DIVIDENDS— WHEN  AND  TO  WHOM  PAID— KINDS  OF. 

When  dividends  are  to  be  paid.    Charter  provision.— The 

profits  of  the  company,  or   so   much   thereof  as  the  board  of 
directors  may  deem  advisable,   shall,    when  the  affairs  of  the 


NKKAL    I'OWKKS   OF    THE    N.,    C.    A   ST.    L.    RY.  735 

company  will  permit,  be  semi-nnmwlly  divided  among  the  stock- 
holders in  proportion  to  the  stock  each  may  hold.  Charter, 
sec.  30,  p.  20  herein. 

By  acts  Tenn.  184:7-8,  ch.  70,  sec.  3,  this  section  of  the 
charter  was  amended  so  that  the  company  should  be  required 
to  estimate  and  pay  semi-annually  to  the  several  holders  thereof 
a  sum  equal  to  six  per  cent,  per  annum  on  the  capital  stock 
actually  paid  in,  to  be  charged  to  the  cost  of  construction;  Pro- 
vided,  a  majority  of  the  stockholders  at  their  first  regular  meet- 
ing agree  thereto.  Acts  Tenn.  1847-8,  ch.  70,  sec.  3,  but  see 
discussion  of  right  of  legislature  to  amend  the  charter  under 
heading,  ' '  Charter. ' ' 

This  amendment  held  good  in  8  Lea,  427. 

Misdemeanor ;  tO  pay,  When.— The  payments  of  dividends, 
however,  which  leave  insufficient  funds  to  meet  liabilities  is  a 
misdemeanor,  and  also  subjects  those  actively  concerned  in  the 
same  to  damages.  Code  Tenn.  (M.  &  V.),  §§  1716-17  [Shan- 
non's code  Tenn.,  £§  2067-68]. 

StOCk  dividends. — "  In  the  absence  of  a  statute  restraining 
such  action,  it  is  within  the  discretion  of  the  directors  of  the 
corporation,  or  at  least,  within  the  power  of  the  corporation, 
to  issue  additional  .shares  of  stock  to  represent  its  surplus 
profits,  and  to  divide  such  stock  pro  rata  among  its  existing 
stockholders.  The  reason  is,  in  substance,  that  the  effect  of 
doing  this  is  merely  to  change  the  form  of  ownership  of  the 
capital  of  the  corporation."  Thompson  on  Corp.,  sec.  2167  ; 
93  N.  Y.,  162  ;  99  Mass.,  101  ;  115  Mass.,  471  ;  49  Pa.  St., 
270. 

Bonds  in  lieu  Of  Cash  dividends.— "A  railroad  corporation 
may  issue  to  its  stockholders  bonds  in  lieu  of  cash  dividends  to 
represent  earnings  which  have  been  used  in  construction.'' 
Thompson  on  Corp.,  sec.  2169;  47  Hun  (N.  Y.),  550;  87 
Tenn.,  406. 

TO  Wbom  dividend  paid. — The  dividends  should  be  paid  to 
those  persons  whose  names  appear  on  the  books  of  the  corpo- 
ration as  the  owners  of  the  stock.  If  the  shares  are  transferred 
or  assigned  without  notice  to  the  company,  or  transfer  of  cer- 


736  EMINENT    DOMAIN. 

tificate  on  books  of  company  by  assigner  or  transferor,  the 
company  will  be  protected  in  paying  dividend  to  party  whose 
name  appears  on  the  books  as  the  owner  of  the  shares.  Sec. 
36  of  the  charter  of  this  road  provides  that  u  the  stock  of  said 
company  may  be  transferred  in  such  manner  and  form  as  may 
be  directed  by  the  by-laws  of  said  corporation.'7  See  p.  10 
herein.  A  by-law  or  rule  of  the  company,  however,  requiring 
the  transfer  to  be  made  on  the  books  of  the  company,  is  a  rule 
made  solely  for  the  benefit  of  the  company.  By  it  the  com- 
pany is  enabled  to  know  who  are  entitled  to  vote,  and  to  whom 
to  pay  dividends.  91  Tenn.  (1  Pick),  221,  238;  18  S.  W., 
546;  1  Spell.  Priv.  Corp.,  sec.  498;  Parker  v.  Bethel  Hotel 
Co.,  vol.  34,  No.  2,  S.  W.  Rep.,  217;  12  Pick.  (Tenn.)  253. 

Guaranteed  dividends. — A  railway  has  no  power,  in  the 
absence  of  explicit  grant  of  such  power,  to  guarantee  a  speci- 
fied dividend  on  its  stock,  or  stock  in  an  elevator  company.  1 
Pick.  (Tenn.)  703  ;  (85  Tenn.)  703. 

Dividends  wrongfully  paid.— There  can  be  no  recovery,  by 
or  on  behalf  of  shareholders,  for  dividends  improperly  declared 
and  paid  out  to  the  shareholders  themselves.  5  Pick.  (Tenn.), 
631. 


CHAPTER  LXVI. 

EMINENT  DOMAIN— RIGHT  OF— IN  \VHOSE  NAME  TO  BE  DONE- 
NATURE  OF  RAILWAY'S   OWNERSHIP  OF  RIGHT  OF  WAY— 
SUCCESSIVE    APPROPRIATIONS  — RIGHT  OF  OTHERS 
TO  CONDEMN  PROPERTY  OF  THIS  COMPANY. 

Right  of  Nashville  &  Chattanooga  Railroad  to  condemn, 
under  its  charter,  right  of  way  and  approaches.— [in  Ten- 
nessee]. The  charter  of  incorporation  of  the  Nashville,  Chat- 
tanooga and  St.  Louis  Railway  was  granted  by  the  legislature 
in  1845  for  the  purpose  of  establishing  a  communication  by 
railroad  between  Nashville  and  Chattanooga.  Sec.  24  of  its 
charter,  p.  15,  herein,  provides  that  "where  any  lands,  or 


GENERAL    I'OWKKS    OF    THE    N.,    C.    <k    ST.    L.    RY.  737 

right  of  way  may  be  required  by  the  said  company  for  the  pur- 
pose of  constructing  their  road,  and  for  want  of  agreement  as 
to  the  value  thereof,  or  for  any  other  cause,  the  same  cannot  be 
purchased  from  the  owner  or  owners,  the  same  may  be  taken 
at  a  valuation  to  be  made  by  five  commissioners,  or  a  majority 
of  them,  to  be  appointed  by  the  circuit  court  of  the  county 
where  some  part  of  the  land  or  right  of  way  is  situated;  and 
the  said  commissioners,  before  they  act,  shall  severally  take  an 
oath  before  some  justice  of  the  peace,  faithfully  and  impartially 
to  discharge  the  duty  assigned  them,  etc.''  See  section  itself 
on  p.  15,  herein,  as  to  how  they  were  to  arrive  at  valuation. 

But  what  is  to  be  understood  as  comprehended  in  the  power, 
to  take  any  lands,  or  right  of  way,  that  may  be  required  for 
the  purpose  of  constructing  the  road  *  Justice  McKinney,  in 
construing  this  section  of  the  charter  of  the  road,  held  that, 
"To  enable  the  company  to  effect  the  ends  contemplated  by  the 
charter,  the  transportation,  or  conveyance,  of  persons,  goods, 
merchandise  and  produce,  over  said  railroad,  there  must,  of 
necessity,  be  a  way  of  approach  to  the  road,  an  avenue  for  the 
passage  of  persons  and  vehicles  to  and  from  the  road,  some 
place  for  receiving  and  delivering,  loading  and  unloading  the 
goods,  merchandise  and  produce  conveyed,  or  to  be  conveyed, 
by  the  company  over  the  road.  Without  this  the  charter 
would  be  nugatory.  Land,  or  right  of  way,  for  those  pur- 
poses, is  just  as  necessary  as  for  the  Ixnl  of  the  road,  and  in- 
deed must  be  regarded  as  constituting  part  of  the  road." 
Hence,  under  this  section  of  the  charter,  any  land  may  be  con- 
demned, not  only  for  the  right  of  way,  but  for  a  way  of  ap- 
proach to  the  road,  by  persons  or  vehicles,  and  for  a  place  for 
receiving  and  delivering,  loading  and  unloading  the  goods, 
merchandise  and  produce  conveyed,  or  to  be  conveyed,  over  the 
road.  11  Hum.  (Tenn.),  348. 

1.  Fee  simple  title  acquired  if  condemned  and  paid  for. — It  will  be 
noticed  that  by  sec.  24  of  the  charter  above  referred  to  (p.  16.  herein) 
that  as  soon  as  the  commissioners  appointed  to  assess  the  value  made 
their  return,  and  the  railway  paid  or  tendered  the  amount  assessed,  that 
the  title  to  the  land  or  right  of  way  immediately  vested  in  the  company 
in  fee  simple.  4  Sneed  (Tenn.)  528  [280].  For  character  of  title  acquired 
where  land  not  paid  for  or  contract  made,  see  further  on  in  this  chapter. 
47 


738  EMINENT    DOMAIN. 

2.  To  what  branches  does  the  foregoing  section  apply  ? — The 
charter  of  the  Northwestern  Branch,  p.  93,  herein;  the  Lebanon 
Branch,  p!  138,  §  15,  herein  ;  the  Fayetteville  Branch,  p.  156.  herein; 
the  McMinnville  Branch,  p.  179  and  194  herein;  the  Huntsville  Branch, 
p.  214  herein;  the  Jasper  Branch,  p.  265  herein;  and  the  Shelby ville 
Branch,  p.  286  herein,  all  have  similar  sections  to  the  above,  and  hence 
on  those  branches  the  above  will  also  apply.  As  to  those  branches  orig- 
inally chartered  under  the  general  Acts  of  Tennessee,  the  condemnation 
would  only  vest  an  easement  in  the  company  and  not  a  fee. 

Cannot  condemn  land  for  workshops,  storehouses,  ma- 
terials and  houses  for  agents,  under  charter.— The  supreme 

court  also  held  in  the  same  case  that  for  the  purpose  of  deposi- 
tories, storehouses,  houses  for  agents,  workshops,  or  for  pro- 
curing timber,  stone  or  other  material  necessary  for  the  con- 
struction of  the  road,  etc,  which  are  not  necessarily  required  to 
be  contiguous  to  the  termination  of  the  road,  that  the  company 
had  no  power  to  condemn  lands  under  this  section  of  the  char- 
ter, but  that  it  must  rely  on  negotiations  with  the  owners 
thereof,  which  it  was  allowed  to  do  by  purchase  under  section 
21  of  its  charter.  11  Hum.  (Tenn.),  348. 

In  absence  of  contract  or  condemnation,  railroad  entitled 

to  tWO  hundred  feet  right  Of  way.— Section  25  of  the  charter 
of  the  Nashville,  Chattanooga  &  St.  Louis  Railway  provides 
that,  "  in  the  absence  of  any  contract  with  the  said  company  in 
relation  to  land  through  which  the  said  road  may  pass,  signed 
by  the  owner  thereof,  or  by  his  agent,  or  claimant,  or  person 
in  possession  thereof,  which  may  be  confirmed  by  the  owner, 
it  shall  be  presumed  that  the  land  upon  which  the  said  road 
may  be  constructed,  together  with  a  space  of  one  hundred  feet 
on  either  side  of  the  center  of  said  road,  has  been  granted  to 
the  company  by  the  owner  thereof,  and  the  company  shall 
have  good  right  and  title  thereto,  and  shall  have,  hold,  and 
enjoy  the  same  as  long  as  the  same  be  used  only  for  the  pur- 
poses of  the  road,  and  no  longer,  unless  the  person  or  persons 
owning  the  said  land  at  the  time  that  part  of  the  road  which 
may  be  on  said  land  was  finished,  or  those  claiming  under  him, 

t/  C7  ' 

her  or  them,  shall  apply  for  an  assessment  for  the  value  of  said 
land,  as  herein  before  directed,  within  five  years  next  after 
that  part  of  said  road  was  finished,  and,  in  case  the  said  owner 


(iKNKHAL    I'OWKKS   OF   THE    N.,    C.    A   ST.    L.    RV.  739 

or  owners,  or  those  claiming  under  him,  her  or  them,  shall 
not  apply  for  such  assessment  within  five  years  next  after  the 
said  part  was  finished,  he,  she,  or  they  shall  be  forever  barred 
from  recovering  the  said  land,  .or  having  any  assessment  or 
compensation  therefor;  Provided,  Nothing  herein  contained 
shall  effect  the  right  of  feme  covert*  or  infants  until  two  years 
after  the  removal  of  their  respective  disabilities.  Charter,  sec. 
25,  p.  17  herein. 

1.  It  will  be  noticed  that  the  character  of  title  acquired  by  the  railroad 
under  the  above  section  of  the  charter  is  considerably  different  from  that 
acquired  uuder  section  24.  In  the  latter  case,  as  soon  as  the  commissioners 
appointed  to  assess  the  value  made  their  return,  and  the  railway  paid  or 
tendered  the  amount  assessed,  the  title  to  the  land  or  right  of  way  im- 
mediately vested  in  the  company  in  fee  simple.  4  Sneed  (Tenn.),  528 
[280].  The  title  acquired  under  section  25.  above  set  out,  is  materially 
different.  In  that  case  the  land  is  not  paid  for,  and.  though  the  com- 
pany is  given  one  hundred  feet  on  each  side  of  the  center  of  the  road,  in 
the  absence  of  any  contract  to  the  contrary,  where  the  owner  failed  to 
apply  in  time  for  assessment,  yet  the  title  secured  is  only  an  easement, 
and  not  a  fee  simple,  and  the  landowner  is  entitled  to  the  use  of  it  until 
necessary  for  railroad  purposes,  though  he  must  then  give  it  up.  5 
Pick.  (Tenn.),  293;  16  Pick.  (Tenn.),  209;  17  Pick.  (Tenn.).  62. 

3.  For  width  of  right  of  way  on  the  various  branches,  see  discussion 
herein,  under  their  respective  headings.  Refer  to  index.  See  also  notes 
to  succeeding  sections  herein. 

This  section  valid,  and  landowner's  possession  not  adverse. 
Railway  may  take  when  necessary  for  railroad  purposes.— 

This  section  of  thfc  charter  has  also  been  construed  by  the  su- 
preme court  and  held  valid.  By  virtue  of  the  franchise  ac- 
quired by  the  railroad  company  under  this  section,  it  has  the 
right  to  an  easement  of  one  hundred  feet  on  each  side  of  the 
center  of  the  road,  when  necessary  for  railroad  purposes,  unless 
the  landowner  applies  in  time  for  assessment  of  value.  Only 
the  number  of  feet,  however,  on  each  side  up  to  a  hundred  to 
be  taken  from  time  to  time,  as  the  necessities  of  the  road 
require.  Hence,  it  has  been  held  that  the  railway  may  con- 
struct a  side  track  within  the  one  hundred  feet,  though  the 
landowner  had  been  cultivating  the  land,  under  fence,  for  thirty 
years.  The  statute  of  limitations  did  not  run,  for  the  railway, 
in  taking  the  land,  did  not  acquire  the  fee  therein,  but  only  an 


740  EMINENT    DOMAIN. 

easement.  This  easement  was  not  exclusive  of  the  adjoining 
landowner's  right,  except  when  necessary  for  railway  pur- 
poses. This  being  so,  the  adjoining  landowner's  possession  of 
a  part  of  the  two  hundred  feet,  right  of  way  not  actually  used 
by  the  railway  is  not  adverse  to  the  company's  right,  so  long 
as  the  land  was  not  required  for  railroad  purposes,  and  there 
was  no  open  assertion  of  any  right  hostile  to  or  incompatible 
with  the  company's  easement  therein."  5  Pick.  (Tenn.),  293. 
See  also  Railroad  v.  Gordon,  decided  at  the  December  term  of 
the  supreme  court,  at  Nashville.  See  also  17  Pick.  (Tenn.),  62. 

1.  Statute  of  limitations  runs,  when. — The  statute  never  commences 
to  run  until  the  ground  becomes  necessary  for  railroad   purposes.     16 
Pick.  (Tenn.),  209. 

2.  To  what  branches  does  this  section  apply  ? — The  above  section 
not  only  applies  to  the  main  branch,  but  also  to  the  Northwestern  (p.  93 
herein),  the  Lebanon  (p.  138  herein),  the  Fayetteville  (p.  156  herein),  the 
McMinnville  (pp.  179  and  194  herein),  the  Huntsville  (p.  214  herein),  the 
Jasper  (p.   265  herein),  and   the   Shelbyville  (p.   286  herein).     As  to  the 
other  branches,  see  discussion  herein  under  their  respective  chapters. 
Refer  to  index  for   branch  desired.     See  also  Alabama,   Georgia,   and 
Kentucky  acts  on  this  subject,  further  on  in  this  chapter. 

3.  As  to  branches  in  Alabama,  Georgia,  and  Kentucky,  see  further  on 
in  this  chapter. 

Necessity  for  taking;  who  to  determine.— The  supreme  court 

of  Tennessee  having  decided  that  the  railroad  company  could  oc- 
cupy all  or  any  portio'n  of  its  right  of  way  acquired  under  section 
25  of  its  charter  when  necessary  for  railroad  purposes,  it  becomes 
important  to  ascertain  who  is  to  pass  upon  such  necessity.  In 
the  case  of  Railroad  v.  French  it  was  held  that  "a  water  tank  is 
a  species  of  property  necessary  for  the  purposes  of  a  railroad,  and 
there  is  no  question  made  or  proof  introduced  to  show  that  it  was 
not  necessary  to  erect  it  at  this  point.  We  cannot  presume  that 
the  railroad  would  place  the  tank  there  for  any  other  purpose  than 
that  of  a  railroad  use.  If  it  was  erected  there  to  annoy  and 
harass  plaintiff,  or  for  any  other  than  a  necessary  railroad 
purpose  and  convenience,  that  fact  should  have  been  shown  by 
the  proof."  16  Pick.  (Tenn.),  209-12.  See,  also,  17  Pick. 
(Tenn.),  62.  From  this  it  appears  that  the  necessity  for  the 
taking  is  not  within  the  sole  discretion  of  the  railway  company, 


GENERAL    POWERS   OF   THE    X.,    C.    A    ST.    L.    KY.  741 

though  the  burden  of  proof  will  be  upon  the  plaintiff  to  show 
the  absence  of  such  necessity.  The  question  will  be  one  of  fact. 
This  holding  is  not  in  entire  accord  with  the  decisions  of  other 
states  upon  the  subject.  Most  of  them  hold  that  the  necessity 
of  taking  additional  portions  of  the  right  of  way  for  the  pur- 
pose of  placing  additional  tracks  thereon,  broadening  tunnels, 
etc.,  together  with  the  mode  of  occupancy  and  the  degree  of 
exclusiveness  necessary  or  proper  for  the  convenient  exercise 
of  its  franchises,  are  within  the  absolute  discretion  of  the  man- 
agers of  the  railway,  and  that  they  are  the  sole  judges  of  what 
is  proper  or  convenient  as  means  for  attaining  the  end  and  per- 
forming the  service  to  the  public  for  which  the  corporate  fran- 
chises were  granted.  Brainard\.  Clapp,  10  Cush.  6;  Boston 
Gas  Light  Co.  v.  Old  Colony  ct-  Netcport  R.  R.  Co.,  14  Allen, 
444;  Ham  v.  Salem,  100  Mass.,  350;  104  Mass.,  9.  See,  also, 
5  Am.  &  Eng.  R.  R.  Cases,  389.  Thus,  where  a  railway  had 
located  its  road  upon  or  across  a  public  highway  or  street  with- 
out any  restrictions  as  to  the  number^  of  tracks,  it  was  held 
that  the  company  was  authorized  to  put  down  and  maintain 
upon  any  part  of  its  right  of  way  such  a  number  as  were  essen- 
tial to  the  convenient  transportation  of  its  business,  and  for 
that  purpose  might  make  any  necessary  alteration  in  the  grade 
or  surface  of  the  highway,  anil  such  alteration  would  not  con- 
stitute a  nuisance  or  an  unlawful  obstruction,  if  in  all  other 
respects  the  highway  is  left  in  good  repair  so  as  to  be  safe  and 
convenient  to  passengers.  Rorer  on  Railroads,  p.  505;  14 
Gray  (Mass.),  380;  46  la.,  389;  16  Am.  Railway  Reports, 
45;  54  Penn.  St.,  103;  6  Pick.  (Tenn.),  638. 

Effect  where  substantial  house  erected  within  100-foot 

right  Of  way. — Under  the  decision  in  the  5  Pick,  case,  it  was 
left  somewhat  in  doubt,  whether  or  not  the  railway  could  exer- 
cise its  right  to  the  100-foot  right  of  way,  even  when  necessary 
for  railway  purposes,  when  to  do  so  would  require  that  a  land- 
owner should  tear  down  a  substantial  house,  erected  and  used 
by  him  as  of  right,  for  seven  years  or  more,  without  objection 
on  the  part  of  the  railway.  The  erection  of  such  a  house,  it 
was  thought,  might  possibly  imply  an  intention  to  appropriate 


742  '  EMINENT    DOMAIN. 

the  necessary  land  upon  which  it  was  erected,  forever,  and 
thus  be  construed  into  an  open  assertion  of  a  right  hostile  to, 
or  incompatible  with,  the  company's  easement,  which  would 
not  be  the  case  in  temporary  structures,  etc.  Since  that  de- 
cision, however,  the  supreme  court  has  held  that  even  the 
erection  of  a  substantial  house  by  the  landowner  would  not  pre- 
clude the  railroad  from  occupying  the  ground  on  which  it  is 
built  when  necessary  for  railroad  purposes.  "A  person,"  said 
the  court,  "  who  builds  upon  the  right  of  way  of  a  railroad 
does  so  at  his  peril,  no  matter  what  paper  title  he  may  have 
from  a  third  person  ;  and  all  persons  are  affected  with  notice  of 
the  extent  of  the  right  of  way  when  it  depends  upon  the  charter 
provisions."  16  Pick.  (Tenn.),  209;  see  also  5  Pick.  (Tenn.), 
295.  The  same  doctrine  was  also  held  in  an  oral  opinion  by 
Judge  Caldwell,  of  the  supreme  bench,  in  the  case  of  L.  c&  N. 
R.  R.  Co,  v.  IF.  W.  Gordon,  from  Giles  county,  delivered  at 
the  December  term  of  1896-7,  at  Nashville. 

Statute  of  limitations  runs,  when. — The  statute  of  limitations  in 
such  cases  never  commences  to  run  until  the  ground  becomes  necessary 
for  railroad  purposes.  16  Pick.  (Tenn.),  209;.  5  Pick.  (Tenn.),  295.  See, 
also,  17  Pick.  (Tenn.),  62. 

Nature  of  railways ;  ownership  of  right  of  way ;  may  erect 

buildings  On,  When. — In  the  absence  of  contract,  condemnation, 
or  actual  purchase,  the  railway  onh'  owns  an  easement  in  the 
land.  It  does  not  own  the  fee.  The  original  landowner,  or 
his  heirs,  or  assigns,  own  that,  as  well  as  the  right  to  its  pos- 
session, except  when  necessary  for  railroad  purposes.  5  Pick. 
(Tenn.),  293;  16  Pick.  (Tenn.),  209. 

The  railway  cannot  divert  the  use  for  which  it  was  allowed 
to  condemn,  or  appropriate  it — that  is,  for  railway  purposes — 
yet  ijt  is  allowed  a  large  discretion  in  determining  to  what  use 
it  may  lie  put. 

Thus,  it  may  erect  water  tanks,  and  any  buildings  necessary 
or  convenient  for  the  transaction  of  its  business,  and  for  the 
purposes  of  facilitating  business  with  the  road;  and  by  parity 
of  reasoning,  it  may  license  third  persons  to  erect  and  occupy 
such  buildings.  1  Pick.  (Tenn.),  703;  16  Pick.  (Tenn.),  209; 
17  Pick.  (Tenn.),  62;  91  U.  S.,  454. 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.     RY.  743 

And  it  is  a  reasonable  conclusion  that  it  may  lease  any  por- 
tion of  its  right  of  way  to  third  person,  for  the  erection  of 
such  a  building,  as  for  instance,  grain  elevators,  etc.  Thomp- 
son on  Corp.,  sec.  5878;  Lewis  on  Em.  Dom.,  sec.  588;  17 
Pick.  (Tenn.),  62;  19  Mo.  App.,  411. 

But  not  for  buildings  or  structures  for  private  business,  un- 
connected with  the  oj)eratioii  of  the  road.  Lewis  on  Em.  Dom., 
sec.  584. 

It  may  place  its  tracks  on  any  part  of  the  right  of  way  and 
change  their  location  when  necessary.  43  la.,  501;  7  Allen, 
523;  19  Mo.  App.,  419;  141  Mass.,  174;  85  Mo.,  86;  16  Pick. 
(Tenn.),  209;  17  Pick.  (Tenn.),  62;  5  Pick.  (Tenn).,  293; 
Lewis  on  Emi.  Dom.,  sec.  584. 

It  may  dig  a  well  on  the  right  of  way  for  the  purpose  of  se- 
curing a  supply  of  water,  though  the  effect  may  be  to  drain  a 
spring  on  adjoining  land.  35  la.,  558;  Lewis  on  Emi.  Dom., 
sec.  584;  but  see  7  Lea.,  388;  11  Lea  (Tenn.),  382. 

It  cannot  take,  however,  from  a  stream  which  it  crosses 
water  for  its  locomotives  beyond  the  quantity  which  an  indi- 
vidual might  take  as  a  riparian  proprietor.  112  Pa.  St.,  34; 
Lewis  on  Em.  Dom.,  sec.  585. 

It  is  entitled  to  the  exclusive  possession  of  the  right  of  way, 
if  such  possession  is  necessary  to  the  proper  operation  of  the 
road.  5  Pick.  (Tenn.),  293;  17  Pick.  (Tenn.),  62;  16  Pick. 
(Tenn.),  209;  22  Kan.,  285;  32  Kan.,  608;  Lewis  on  Emi. 
Dom.,  sec.  586. 

It  may  run  a  tunnel  under  the  right  of  way,  or  put  tracks 
above  ground.  5  Pick.  (Tenn.),  293. 

It  has  the  right  to  occupy  its  right  of  way  beyond  its  tracks, 
cuts,  and  fills,  but  only  to  such  distance  and  to  such  extent 
within  the  charter  limit  as  to  maintain  its  track  and  oi>erate  its 
trains.  It  can  only  go  beyond  these  limits  for  necessary  rail- 
road purposes.  It  cannot  sell,  transfer,  encumber,  or  use  its 
right  of  way  except  as  necessity  and  convenience  may  demand 
for  the  projxjr  o|>eration  of  its  road.  It  cannot  license  the  ap- 
propriation of  any  part  of  such  right  of  way  to  private  busi- 
ness purposes,  nor  to  public  purposes,  except  so  far  as  needful 


744  EMINENT    DOMAIN. 

and  helpful  to  the  operation   of  the  road  itself.       17  Pick. 
(Tenn.),   62. 

If  condemnation  was  made  as  provided  for  in  section  24  of 
the  charter  (p.  15  herein),  and  the  amount  of  damages  so  as- 
sessed, paid  or  tendered,  then  the  title  to  the  right  of  way 
vested  in  the  railroad  company  in  fee  simple,  and  it  can 
do  anything  with  it,  or  build  any  kind  of  structures  on  it,  as 
any  other  owner  could  do.  The  disadvantage  of  the  title  so 
acquired,  however,  would  be  that  the  statute  of  limitations 
would  doubtless  run  where  adjoining  landowners  built  on  right 
of  way.  The  title  acquired  under  section  25,  therefore,  is  the 
more  valuable. 

The  above  applies  to  all  branches. 

Right  to  trees,  herbage,  gravel,  etc.,  on  right  of  way.— 

The  right  to  the  easement  carries  with  it  the  right  to  so  much 
earth,  gravel,  stone,  trees,  and  timber  within  their  lines  of 
location  as  may  be  needed  for  the  construction  and  maintenance 
of  the  entire  road.  Such  material  may  be  carried  from  point, 
to  point  on  the  line  of  road  covered  by  the  charter  under  which 
the  right  of  way  was  originally  acquired  to  supply  deficiencies 
and  diminish  excesses  of  each  of  such  material  on  any  other 
point  of  said  road.  It  is  probable,  however,  that  it  cannot  be 
taken  from  a  point  on  the  right  of  way  acquired  under  one 
charter  and  be  moved  to  a  point  on  the  right  of  way  acquired 
under  another,  as,  for  instance,  removing  it  from  some  point 
on  the  Lebanon  Branch  to  some  point  on  the  Centreville  Branch. 
Rorer  on  R.  R.,  p.  325;  39  N.  H.,  564;  lOCush.,  6;  9  Vroom, 
28;  19  Kan.,  517;  2  Iowa,  288;  5  Am.  Rep.,  624;  Lewis  on 
Emi.  Dom.,  sec.  587.  See  also  35  N.  H.,  564;  33  Kan.  746. 
It  cannot  remove  or  sell  them,  however,  merely  for  profit.  It 
must  be  used  in^  the  construction  or  maintenance  of  the  road, 
and  not  done  through  wantonness  or  spite. 

1.  The  above  applies  to  all  branches. 

2.  Where  right  of  way  paid  for  or  condemned. — If  the  right  of  way 
at  the  point  in  question  was  purchased  in  fee,   or  if  condemned  under 
section  24  of  the  charter,  then  the  railway  owns  the  same  in  fee  simple 
and  can  remove  or  sell,  gravel,  etc.,  from  it  at  pleasure. 


GEXKItAL    POWERS    OF    THE    X. ,    C.    A   ST.    L.    RY.  7-1.". 

What  damages  to  adjoining  landowner  included  in  condemn- 
ing right  Of  way. —  "The  assessment  for  the  right  of  way  covers 
all  damages  sustainable  by  the  landowner  over  whose  land  the 
right  of  way  is  taken,  not  only  for  the  easement,  but  for  all  inci- 
dental injuries,  inconveniences,  and  dangers  incurred  or  liable  to 
occur  by  the  proper  construction  and  use  of  the  road,  or  by 
any  act  necessary  to  such  proper  construction  and  use;  in- 
creased rates  of  insurance,  caused  by  increased  liability  to  fire; 
additional  expense  of  fencing;  stoppage  of  drainage;  drying  up 
of  springs;  diminution  of  value  by  separation  of  tracts  into 
separate  parts;  irregularity  of  surface,"  etc.  In  other  words, 
all  injuries  or  damage  resulting  from  the  rightful  construction 
of  the  road  are  covered,  and  the  compensation  for  same  are 
exhausted  by  the  original  assessment  made  by  the  commission- 
ers in  assessing  for  the  right  of  way.  Rorer  on  R.  R.,  p. 
324;  87  Ky.,  391;  91  Ky.,  487;  69  Ga.,  396. 

The  above  applies  to  all  branches. 

Overflowing  for  twenty  years  gives  right  to  do  so.— If  a 

railroad  for  twenty  years  continuously  maintains  its  roadbed 
so  as  to  overflow  the  adjacent  lands,  claiming  the  right  to  do 
so,  and  withoutinterruption  or  recognition  of  the  landowners' 
rights,  it  acquires  by  prescription  a  right  to  do  so.  6  Pick. 
(TemU,  157;  11  Lea  (Tenn).,  382. 

Successive  appropriations ;  right  to  take  land  for  right  of 
way,  side  tracks,  depots,  approaches,  etc.,  not  exhausted.— 

The  power  of  a  railway  to  condemn  property  for  its  right  of 
way,  depots,  approaches,  etc.,  from  time  to  time,  as  necessity 
requires,  after  the  exercise  of  the  right  in  the  first  instance  and 
the  completion  of  the  road  has  not  received  in  Tennessee  that 
consideration  which  the  importance  of  the  subject  requires. 
Cases  frequently  occur  where  the  right  of  way,  depot  facilities, 
approaches,  etc.,  originally  appropriated  under  the  charter, 
become  inadequate,  as  trade,  commerce  and  travel  increase 
with  the  growth  of  the  country.  A  railway,  in  its  infancy, 
could  not  possibly  anticipate  what  conveniences  of  this  descrip- 
tion the  future  may  require.  Not  only  does  commerce  and 
population  increase,  but  the  laws  governing  the  reception  and 


746  EMINENT    DOMAIN. 

convenience  of  passengers,  patrons,  and  the  public  generally, 
render  constantly  the  necessity  of  larger  and  more  commodious 
depots,  freight  houses,  approaches,  and  rights  of  way.  If  the 
company  was  compelled  to  anticipate  in  advance  all  such  future 
needs,  it  would  not  only  have  to  pay  for  enormous  tracts  of 
property  in  its  incipiency,  but  often  and  often  be  saddled  with 
property  which  it  could  never  use  at  all.  Not  only  would  this 
be  so,  but  if,  from  economy  or  poverty,  a  small  amount  of  land 
was  taken,  or  business  grew  beyond  any  reasonable  anticipa- 
tion, the  railway  might,  in  a  few  years,  find  itself  unable  to 
discharge  its  duties  to  the  public. 

For  these  reasons  it  is  almost  universally  held,  though  the 
question  seems  never  to  have  been  positively  decided  in  this 
state,  but  doubtless  would  be  if  tested,  that,  ' '  in  the  absence  of 
any  restriction  or  limitation,  the  power  to  take  private  prop- 
erty may  be  exercised  by  the  grantee  road  from  time  to  time, 
as  necessity  requires;"  and,  that  "a  railroad  company,  after 
having  located  and  completed  its  road,  may,  as  the  expansion 
of  its  business  requires,  take  additional  land  for  right  of  way, 
terminal  facilities,  depot  accommodations,  side  tracks,  or  for 
any  other  purpose  for  which  its  compulsory  powers  may  be  ex- 
ercised." Lewis  on  Em.  Dom.,  sees.  259,  247;  1  Md.,  553; 
52  Ind.,  16,  42;  101  Ind.,  366;  113  111.,  156;  26  Kan.,  669; 
13  Neb.,  361:  54  Pa.  St.,  103;  57  Ark.,  359;  58  Pa.  St.,  249; 
Elliott  on  Railways,  sees.  930,  962;  104  Ills.,  323;  "8  Nev.  100; 
58  Md.,  539;  17  111.,  123;  Rorer  on  Railroads,  p.  372,  275; 
16  Ohio  St.,  390;  54  Pa.  St.,  103;  10  Vroom,  45;  67  Barb., 
426;  52  Ind.,  16;  Randolph  on  Em.  Dom.,  p.  107,  sec.  116; 
36  Conn.,  196;  87  Ala.,  501;  85  Ala.,  106;  101  Ind.,  366;  87 
Ky.,  72;  71  111.,  592;  45  Mo.,  212;  18  Pick.  (Mass.),  472. 

This  being  so,  the  question  presents  itself,  is  there  any  re- 
striction or  limitation  in  the  charter  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  as  to  its  power  to  take  or  condemn 
property  from  time  to  time  as  the  expansion  of  its  business 
requires,  for  additional  right  of  way,  depots,  terminal  facili- 
ties, sidetracks,  etc.  ?  If  there  are  no  such  restrictions  or  lim- 


GENERAL    POWERS    OF   THE    X.,    C.    A    ST.    L.    RV.  747 

itations  then  the  power  is  possessed,  and  it  will  not  he  limited 
to  its  purchasing  power  alone. 

Section  24  of  the  charter  provides  that  "  where  any  lands  or 
right  of  way  may  be  required  by  the  said  company  for  the 
purpose  of  constructing  their  road,  and  for  want  of  agreement 
as  to  the  value  thereof,  or  from  any  other  cause  the  same  can- 
not be  purchased  from  the  owner,  the  same  may  be  taken  at  a 
valuation  to  be  made  by  five  commissioners,  or  a  majority  of 
them,  to  be  appointed  by  the  circuit  court  of  the  county  where 
some  part  of  the  land  or  right  of  way  is  situated,"  etc.  See 
p.  15  herein.  From  this  it  will  be  seen  that  power  is  given  to 
take  land  or  right  of  way  for  the  purpose  broadly  of  construct- 
ing the  road.  No  restriction  is  made  as  to  the  numJ>er  of  feet 
to  lie  taken,  nor  is  any  limitation  provided  as  to  the  time  in 
which  it  shall  be  done,  the  only  proviso  being  that  it  shall 
be  taken  only  when  required  for  the  purpose  of  constructing 
the  road. 

Section  21  of  the  charter  provides  that  "  the  said  company 
may  purchase,  have  and  hold  in  fee,  or  for  a  terra  of  years, 
any  lands,  tenements,  hereditaments,  which  may  be  necessary 
for  said  road,  or  appurtenances  thereof,  or  for  the  erection  of 
depositories,  storehouses,  houses  for  the  officers,  servants,  or 
agents  for  the  company,  or  for  workshops  or  foundries  to  be 
used  for  said  company,  or  for  procuring  timber,  stones  oi1 
other  materials  necessary  for  the  construction  of  the  road 
or  its  appurtenances,  or  for  effecting  transportation  thereon." 
See  p.  13  herein. 

The  supreme  court,  in  construing  these  two  sections  together, 
held  as  l>efore  explained  that  it  was  evidently  the  intention  of 
the  legislature  to  require  the  railway  to  purchase,  or  negotiate 
for,  and  not  to  condemn  lands  for  depositories,  store  houses, 
houses  for  agents,  workshops,  or  for  procuring  timl>er,  stone, 
or  other  material  necessary  for  the  construction  of  the  road,  as 
was  provided  for  in  section  21  as  aforesaid,  but  that  it  could 
condemn  or  take  the  land  under  section  24,  not  only  for  the 
right  of  way,  but  for  approaches  to  the  road  by  persons  or 
vehicles  and  for  places  for  receiving  and  delivering,  loading 


74:8  EMINENT    DOMAIN. 

and  unloading  goods,  merchandise,  and  produce,  conveyed  or 
to  be  conveyed  over  the  road.  11  Hum.  (Tenn.),  348. 

For  these  purposes,  however,  no  restriction  or  limitation 
either  as  to  the  amount  of  land,  or  the  time  in  which  it  is  to  be 
taken,  was  imposed.  Under  section  24  of  the  charter,  there- 
fore, any  number  of  feet,  whether  one  hundred  or  ten  thousand, 
could  have  been  taken,  if  absolutely  necessary  for  railway  pur- 
poses. It  is  true  section  25  of  the  said  charter  provides  that 
"in  the  absence  of  any  contract  with  the  said  company  in  rela- 
tion to  land  through  which  the  said  road  may  pass,  signed  by 
the  owner  thereof,  or  by  his  agent,  or  claimant,  or  person  in 
possession  thereof,  which  may  be  confirmed  by  the  owner,  it 
shall  be  presumed  that  the  land  upon  which  the  said  road  may 
be  constructed,  together  with  a  space  of  one  hundred  feet  on 
each  side  of  the  center  of  said  road,  has  been  granted  to  the 
company  by  the  owner  thereof,  etc."  See  p.  17  herein. 

Even  this  section,  however,  does  not  restrict  the  railway  to 
one  hundred  feet  on  each  side  of  the  center  of  the  road.  It 
simply  provides  that  in  certain  contingencies  it  shall  be  pre- 
sumed that  the  land  upon  which  the  road  is  constructed,  to- 
gether with  a  space  of  one  hundred  feet  on  each  side  of  the 
center  of  the  road,  has  been  granted  to  the  company.  In  other 
words,  that  it  was  conveyed  to  it,  not  condemned.  It  does  not 
restrict  the  railway  to  this  one  hundred  feet,  however,  for  all 
time  to  come,  but  simply  places  it  in  the  attitude  of  having 
originally  purchased  that  number  as  an  easement,  instead  of 
having  taken  it  under  section  24  of  its  charter;  for  as  the  pre- 
sumption of  a  grant  would  arise,  the  presumption  that  it  had 
never  exercised  its  right  to  condemn  as  to  that  particular  tract 
of  ground  would  of  necessity  also  arise.  There  is  nothing  in 
this  section,  therefore,  that  restricts  the  railway  to  any  partic- 
ular number  of  feet,  nor  limits  the  time  in  which  it  may  act. 
It  stands  in  the  attitude  under  this  section  of  having  originally 
considered  that  one  hundred  feet  on  each  side  of  its  road  was 
sufficient  for  its  necessities  at  that  time,  and  of  having  pur- 
chased an  easement  over  the  same.  5  Pick.  (Tenn.),  293,  294. 


GENERAL    POWERS    OF    THE    N.,    C.    «fe    ST.    L.    RV.  749 

If  necessities  arise  in  the  future,  however,  which  will  require 
more  ground,  as  before  explained,  there  is  nothing  in  this  sec- 
tion that  could  be  construed  into  an  intention  on  the  part  of 
the  legislature  of  limiting  or  restricting  the  railway  to  that 
particular  number  of  feet. 

The  only  argument,  if  any  at  all  could  be  made,  in  answer 
to  the  foregoing  would  be  that,  as  the  legislature,  in  section  39 
of  the  charter  (p.  23  herein),  required  that  the  railway  should 
be  commenced  within  three  years  after  the  passage  of  the  act 
of  incorporation  and  be  h'nished  within  six  years  thereafter,  that 
it  intended  thereby  to  limit  the  power  of  the  railway  to  take 
or  condemn  land  to  that  time.  This  is  a  very  ingenious  argu- 
ment, and  has  often  before  been  advanced  on  such  occasions, 
but  the  great  weight  of  authority  has  always  been  adverse  to 
this  contention,  holding  that  such  clauses  in  charters  of  railway 
companies  were  aimed  only  at  a  speedy  operation  of  the  road, 
in  order  that  the  objects  for  which  they  are  created  should  be 
accomplished — namely,  the  convenience  and  accommodation  of 
the  public — and  that  they  in  no  manner  prevented  successive 
appropriations.  58  Md.,  539;  5-i  Pa.  St.,  103;  Elliott  on  R. 
R.,  sec.  971. 

Should  our  state,  therefore,  follow  the  great  weight  of  au- 
thority in  such  cases,  when  the  question  is  properly  presented, 
the  railway  may  from  time  to  time,  as  the  expansion  of  its 
business  requires,  take  additional  land  for  right  of  way,  termi- 
nal facilities,  depot  accommodations,  side  tracks,  etc. 

To  what  states  and  branches  does  this  apply  P — The  foregoing 
section  applies  to  all  the  states  through  which  the  road  runs.  See  87 
Ala.,  501;  85  Ala.,  106;  87  Ky.,  72. 

It  also  particularly  applies  to  the  following  branches:  The  main 
branch,  p.  1;  Northwestern,  p.  93  herein;  Lebanon,  p.  138  herein;  Fay- 
etteville,  p.  150  herein;  McMinnville,  pp.  179  and  194  herein;  Huntsville, 
p.  214  herein;  Jasper,  p.  365  herein;  and  the  Shelby ville  Branch,  p.  286 
herein. 

It  does  not  apply  to  those  branches  originally  chartered  under  the 
general  acts  Tenn.  1875,  if  the  proposed  appropriation  exceeds  two  hun- 
dred feet,  as  such  roads  are  limited  by  their  charters  to  two  hundred 
feet,  and  can  under  no  circumstances  go  beyond  it.  17  Pick.  (Tenn.),  95. 


750  EMINENT    DOMAIN. 

Railway  may  condemn  land  to  broaden  right  of  way  for 
additional  track,  side  tracks,  etc.,  even  in  face  of  contract 

not  to  do  SO. — It  is  well  settled  that  one  board  of  directors  of 
a  railway  cannot  bargain  away  its  right  of  eminent  domain  or 
curtail  it  in  any  way,  so  as  to  bind  subsequent  boards.  If  the 
right  to  condemn  for  this  purpose  originally  existed,  it  cannot 
be  taken  away  by  contract.  Thus  it  was  held  that  the  mere 
fact  that  a  railroad  had  confirmed  certain  rights  to  a  landowner 
by  contract  did  not  preclude  it  from  condemning  those  rights. 
102  Mass.,  19. 

Again,  where  a  railroad  accepted  from  another  a  grant  of  a 
right  of  way  across  the  grantor's  road  thirty  feet  wide,  on  the 
positive  condition  that  it  should  only  be  used  for  two  tracks,  it 
was  held  that  the  grantee  could,  nevertheless,  condemn  an 
additional  twenty  feet  if  necessary  to  be  occupied  by  more 
tracks.  113  111.,  156. 

Again,  it  was  held  that,  where  a  landowner  dedicated  certain 
land  to  a  railway  for  a  right  of  way  on  condition  that  no 
greater  width  should  ever  be  taken,  that  even  this  did  not 
estop  the  railway  from  condemning  a  broader  strip  when 
necessary.  87  Ky. ,  72. 

The  right  of  eminent  domain  cannot  be  impaired  or  defeated 
by  any  private  contract  between  the  corporation  and  the  owner 
of  property  which  the  legislature  may  subsequently  deem 
necessary  for  public  use.  9  Ky.  L.  R.,  924;  7  S.  W.  R.,  553; 
87  Ky.,  72;  Elliott  on  R.  R.,  sec.  963;  44  Hun.  (N.  Y.),  194. 

A  stipulation  in  a  contract  that  no  side  tracks  shall  be  built 
renders  the  entire  contract  illegal  and  void.  5  Col.,  270;  6 
Col.,  2;  11  Kan.,  602;  64  111.,  414;  71  111.,  592;  45  Mo., 
212;  18  Pick.  (Mass.),  472;  5  Ore.,  117. 

How  condemnation  made  now.    Charter  provision.— The 

right  to  take  property  under  the  power  of  eminent  domain, 
conferred  in  a  charter,  is  an  inviolable  right  that  cannot  be 
withdrawn  by  the  legislature,  nor  surrounded  with  such  condi- 
tions upon  its  exercise  as  will  destroy  its  value.  14  Wend. 
(N.  Y.),  51;  s.  c.,  18  Wend.  (N.  Y.),  9;  31  Am.  Dec.,  313. 
' '  But  where  a  statute  prescribed  a  mode  by  which  lands  may 


t.KNEUAL    POWERS    OF    THE    N. ,    C.    &    ST.    L.    BY.  751 

be  condemned  to  the  use  of  chartered  railways,  and  thereafter 
the  legislature,  by  general  act,  prescribed  a  different  mode,  the 
company  must  proceed  in  the  mode  prescribed  by  the  later  act. 
Such  a  statute  does  not  impair  vested  rights,  but  merely  atfects 
remedies."  Thompson  on  Corp.,  £5407,  citing  3  S.  C.,  381; 
s.  c.,  16  Am.  Rep.,  721);  47  N.  J.  L.,  59;  s.  c.,  54  Am.  Rep., 
114;  see  also  §5437,  Thompson  on  Corp.;  si  Ky.,  221. 

Hence  to  this  extent  section  24  of  the  charter  of  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  may  doubtless  be 
altered  by  subsequent  legislation.  12  Heis.  (Tenn. ),  54;  see 
also  85  Ky.,  270;  81  Ky.,  221. 

Subsequent  legislation  has  provided  general  laws  for  the  con- 
demnation of  land,  which  will  be  found  further  on  in  this 
chapter. 

"As  a  rule,  however,  a  general  law  does  not  repeal  a  prior 
special  law  merely  because  it  embraces  the  same  subject  mat- 
ter. An  intent  to  repeal  the  special  law  must  be  manifested 
either  by  express  words  or  by  language  extending  the  opera- 
tions of  the  general  law  to  all  cases,  etc.  Accordingly  a  gen- 
eral law  in  regard  to  the  assessment  of  damages  in  condemna- 
tion proceedings  will  not  supersede  the  provisions  of  social 
charters  on  the  subject,  unless  expressly  made  applicable  to  all 
cases  of  condemnation,  or  plainly  intended  as  a  revision  of  all 
prior  laws,  general  and  special,  upon  the  subject/'  Lewis  on 
Em.  Dom.,  §248;  34  Wis,  173;  25  N.  J.  L.,  54;  5  Ind., 
413;  36  N.  J.  L.,  198;  25  Mo.,  540.  95  N.  C.,  77;  3  S.  C., 
381.  See  also  3  Sneed  (Tenn.),  119;  1  Head  (Tenn.),  114;  3 
Lea  (Tenn.),  557;  3  Cold.  (Tenn.),  438;  16  Lea  (Tenn.),  Ill; 
3  Bax.  (Tenn.),  152;  1  Pickle  (Tenn.),  451;  4  Pickle  (Tenn.), 
138;  13  Pickle  (Tenn.),  707;  5  Pickle  (Tenn.),  723;  12  Pickle 
(Tenn.),  17;  157  U.  S.,  58;  109  IT.  S.,  556. 

Railway  acquired  a  fee  under  section  24  of  charter. — Under  this 
section,  if  the  railway  company  paid  or  tendered  the  amount  assessed  by 
the  commissioners  as  its  value,  the  right  of  way  immediately  vested  in 
the  company  in  fee  simple.  4  Sneed  (Tenn.),  523  [280].  If  condemna- 
tion is  made  now  under  general  laws,  only  an  easement  is  required. 


752  EMINENT    DOMAIN. 

Railway  may  condemn  lands  for  lateral  roads  not  exceeding 

eight  miles,  When. — Under  the  general  law  of  the  State  of 
Tennessee  any  railway  company  chartered  under  the  laws  of 
the  state,  and  now  operating,  or  which  may  hereafter  operate 
any  line  of  railroad  within  this  state,  is  granted  authority  and 
power  to  build  lateral  roads,  not  exceeding  eight  miles  in 
length,  extending  from  the  main  stem  of  said  line  of  railroad  to 
any  mill,  quarry,  mine,  manufacturing  plant,  or  the  bank  of  any 
navigable  stream,  without  the  making  of  any  amendment  to  the 
charter  of  said  railroad:  Provided,  Private  property  shall  not 
be  taken  for  the  uses  of  such  company,  or  the  construction  of 
such  lateral  branches  without  condemnation  thereof  as  now 
provided  by  law.  Acts  Tenn.,  1895;  p.  314.  [As  to  method 
of  condemning  see  post,  this  heading].  [Shannon's  Code  Tenn. ; 
§1872]. 

For  method  of  condemning-  for  branches  fifteen  miles  in  length,  see 
succeeding-  section. 

The  words  "main  stem  "  in  the  above  act  would  doubtless 
be  construed  to  apply  not  only  to  the  main  stem  proper,  but  to 
all  well  established  and  important  branches  that  were  originally 
constructed  under  their  own  charters  and  subsequently  pur- 
chased or  leased  by  this  company;  as,  for  instance,  the  "North- 
western Branch,"  the  "  Centerville  Branch,"  etc. 

These  roads  were  originally  the  "main  stem"  of  their  re- 
spective companies.  They  were  not  purchased  under  a  re- 
stricted authority  to  purchase  branches,  but  under  a  broader 
authority  to  purchase  other  railroads.  This  being  so  the 
authority  conferred  by  the  legislature  to  purchase  and  operate 
other  roads,  would,  by  implication,  constitute  the  roads  so  pur- 
chased a  part  of  the  main  stem. 

In  this  connection  it  may  also  be  added  that  all  railroads  chartered 
under  the  general  law  may  amend  their  charters,  so  as  to  build  branch 
roads.  Acts  Tenn.,  1889,  p.  303.  This  has  no  application  to  the  N.  &  C. 
charter  proper,  however,  as  it  was  chartered  by  a  special  act.  It  may 
have  applied  to  the  charters  of  those  branches  incorporated  under  the 
general  law,  however. 

Railway  may  condemn  land  for  lateral  and  branch  roads 

fifteen  miles  in  length,  When. — "Any  railroad  company  oper- 
ating a  railroad,  or  any  part  of  same,  in  Tennessee,  or  that 


GENERAL  POWERS  OF  THE  X.,  C.  &  ST.  L.  UY.     753 

may  hereafter  do  so,  shall  have  power  to  build  or  acquire  lateral 
or  branch  lines  of  railroad,  not  to  exceed  fifteen  miles  in  length, 
for  any  one  of  such  lateral  or  branch  roads,  extending  from 
its  main  stem  in  Tennessee,  to  any  mine  or  quarry,  or  into  any 
mineral  section  of  country  tributary  to  such  main  stem,  for 
the  purjx)se  of  developing  the  mineral  or  material  resources  of 
the  country;  and  such  railroads  shall  have  power  to  condemn 
private  proj^erty  for  use  in  the  construction  and  operation  of 
such  lateral  or  branch  roads;  Provided,  That  private  property 
shall  not  be  taken  therefor,  against  the  owner's  will,  without 
condemnation  thereof,  as  now  provided  by  law  in  other  cases, 
and  such  roads  shall  be,  as  common  carriers,  subject  to  the 
same  duties  and  restrictions  as  the  main  lines  with  which  they 
connect.  ActsTenu.,  1S99,  p.  587,  sec.  1. 

1.  The  words  "main  stem"  in  the  above  act  would  also  doubtless  be 
construed  to  apply  not  only  to  the  main  stem  proper,  but  to  all  well- 
established  and  important  branches  that  were  originally  constructed 
under  their  own  charter  and  subsequently  purchased  or  leased  by  this 
company.     For  reasons,  see  preceding  section. 

2.  For  Alabama,  Georgia,  and  Kentucky  law  on  subject,  see  further 
on  in  this  chapter. 

The  above  power  does  not  authorize  consolidation  or 

exemption  from  tax. — "Nothing  in  the  above  section  shall  be 
so  construed  as  to  make  it  lawful  for  any  railroad  corporation 
to  purchase  or  consolidate  itself  with  any  competing  line  of 
railway,  whether  constructed  or  in  course  of  construction  ;  And 
provided,  That  nothing  in  this  act  shall  be  construed  to  exempt 
railroad  companies  from  paying  state,  county,  or  municipal 
taxes  upon  such  extension  or  lateral  branches.  Acts  Tenn., 
1899,  p.  587,  sec.  2. 

Where  lateral  road  is  to  extend  from  purchased  branch,  or 
railway,  in  whose  name  to  condemn.— It  is  a  well  established 

principle  that  when  authority  to  take  property  by  virtue  of  the 
power  of  eminent  domain  is  conferred  by  the  legislature,  it 
becomes  a  personal  trust,  and  cannot  be  delegated  or  trans- 
ferred, except  by  legislative  sanction.  10  Gray,  40;  56  Pa. 
S.,  413;  26  Wend.,  485;  Lewis  on  Em.  Dom.,  sec.  243. 
Purchasers  under  a  mortgage,  grantees,  or  lessees  of  the 

48 


754  EMINENT    DOMAIN. 

property  and  franchises  of  a  corporation  authorized  to  con- 
demn property  cannot,  by  virtue  of  such  purchase,  grant,  or 
lease,  exercise  such  power.  Being  a  personal  trust,  the  power 
must  be  exercised  by  the  grantee  in  person,  and  in  case  of  a 
corporation,  by  the  governing  body,  which  ordinarily  is  the 
board  of  directors.  15  Ohio  St.,  21;  52  Col.,  159;  145  Mass., 
450;  109  Mass.,  103;  26  Wend.,  485;  111  Mass.,  125;  Lewis 
on  Em.  Dom.,  sec.  243. 

It  would  follow,  therefore,  that  the  right  to  condemn  under 
the  charter  would  die  with  the  sale  of  the  road  unless  provided 
otherwise  by  legislative  sanction,  and  the  purchasing  road 
would  have  to  act  under  its  own  charter  and  in  its  own  name. 
There  are  eminent  authorities  that  hold,  however,  that  where 
corporate  property  and  franchises  are  transferred  by  judicial 
sale  the  franchise  to  be  a  corporation  does  not  pass,  but  that 
the  right  to  condemn,  whether  considered  as  a  franchise  or  not, 
passes  as  a  valuable  right  necessary  to  the  full  enjoyment  of  the 
property.  83  N.  C.,  489.  See,  also,  93  U.  S.,  217;  34  Vt, 
484.  This  doctrine  has  even  been  approved  where  the  pur- 
chaser was  not  a  corporation.  39  La.  An.  427;  10  Ohio  St., 
372;  Randolph  on  Em.  Dom.,  p.  100,  sec.  108. 

Where  lateral  road  to  extend  from  leased  road;  who  to  con- 
demn.— A  lease  of  the  property  and  franchises  of  a  corporation 
does  not  destroy  its  right  to  condemn.  35  Hun.,  220;  99  N. 
Y. ,  12.  This  is  true,  though  the  term  of  the  lease  is  for  the  en- 
tire life  of  a  corporation.  The  lease  is  but  a  mode  of  enabling 
the  corporation  to  discharge  its  duties  to  the  public.  Lewis  on 
Em.  Dom.,  sec.  244;  67  N.  Y.,  227;  113  111.,  156;  13  Neb., 
361;  Thompson  on  Corp.,  sec.  5895;  109  Mass.,  103.  Con- 
demnation, therefore,  should  be  exercised  by  the  lessee  road  in 
the  name  of  the  lessor.  Same,  Randolph  on  Em.  Dom.,  p.  100, 
sec.  108.  Or  the  lessee  company  may  itself  condemn.  99 
N.  Y.,  12  ;  35  Hun.,  220  ;  112  U.  S.,  609  ;  Elliott  on  R.  R., 
sec.  958. 

Railway  may  build  branch  roads  to  connect  with  other 
railways  and  condemn  land  therefor.— All  the  railroads  of  the 

state  have  power  to  construct  their  roads  so  as  to  cross  each 


GENERAL    POWERS    OF   THE    N.,    C.    A    ST.    L.    RY.  755 

other,  if  necessary,  by  the  main  trunks  or  branches,  or  to  unite 
with  each  other  as  with  branches.  ActsTenn.  1851-2,  ch.  151, 
sec.  16;  code  Tenn.  (8.),  1504;  (M.  &  V.),  1249a. 

Under  this,  a  railway  company,  authorized  by  its  charter  to 
condemn  land,  may  condemn  land  to  build  a  track  connecting 
or  uniting  it  with  another  railroad.  14  Lea  (Tenn.),  65;  9 
Bax.  (Tenn.),  522. 

Right  of  railway  to  condemn,  or  appropriate  country  road 

Or  COUnty  highway.— [See,  also,  "Highway."]  It  is  unlawful 
for  any  corporation,  or  person,  to  construct  or  use  an  ordi- 
nary steam  railroad  for  the  transportation  of  freight  and  passen- 
gers upon  any  country  road  or  county  highway  of  this  state, 
without  the  consent  of  the  county  court  of  the  county  in  which 
said  road  lies;  and,  before  it  shall  be  lawful  for  the  county 
court  to  give  such  consent,  the  corporation  desiring  to  con- 
struct such  railroad  shall  procure  and  file  with  the  county  court 
the  written  consent  of  the  owners  of  the  lands  abutting  upon 
such  road  or  highway,  aggregating  in  such  abutting  length  at 
least  one-half  of  all  the  lands  in  value,  such  value  to  be  the 
value  of  said  abutting  lands,  running  back  from  said  road  two 
hundred  feet  upon  both  sides  of  the  road  to  be  occupied  by  said 
railroad;  and  any  ordinary  steam  railroad  constructed  upon 
such  county  road  or  highway,  without  the  consent  of  the  said 
county  court,  first  lawfully  obtained,  shall  be  considered  a 
nuisance,  and  liable  to  be  treated  as  such,  both  by  the  public 
authorities  and  by  private  persons.  But,  when  the  consent  of 
said  county  court  shall  have  been  first  lawfully  obtained,  such 
railroad  may  be  lawfully  constructed  and  operated  upon  such 
road  or  highway,  under  such  restrictions  as  to  the  manner  of 
construction  and  mode  of  use  as  the  county  court  may  see  fit  to 
impose  in  granting  the  license;  Provided,  That  railroads  already 
constructed  upon  any  road  or  highway  of  this  state,  under  a 
license  of  the  county  court,  are  hereby  declared  to  be  lawfully 
constructed,  and  this  act  shall  not  be  construed  as  requiring  a 
new  license  from  the  county  court  for  such  construction  or 
operation  under  its  provisions.  Act  Tenn.  1889,  p.  447,  sec.  1 
[Shannon's  code  Tenn.,  §  1879]. 


756  EMINENT    DOMAIN. 

The  same  act  further  provides  "that  this  act  shall  not  be 
construed  so  as  to  prevent  said  owners  of  land  abutting  upon 
such  road  from  obtaining  due  compensation  for  damages  arising 
from  the  construction  of  such  railroad,  such  damages  to  be 
just  compensation  for  all  property  taken,  injured,  or  damaged 
by  the  building  or  operations  of  said  railroad,  said  damages  to 
be  ascertained  and  paid  before  the  right  to  appropriate  the  prop- 
erty to  be  occupied  shall  accrue  as  now  provided  by  law. "  Acts 
Tenn.,  1889,  p.  447,  sec.  2;  [Shannon's  code  Tenn.,  §1880]. 

These  sections,  however,  do  not  apply  to  county  roads  or 
highways  appropriated  by  the  railway  prior  to  its  passage. 
Such  roads  were  taken  under  the  provisions  of  the  charter  of 
the  company. 

Right  of  other  roads  to  condemn  right  of  way;  depot  facili- 
ties, yards,  etc.,  of  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.— It  is  a  well  settled  principle  of  law  that  the  lands  once 
taken  for  a  public  use,  pursuant  to  law,  by  one  railroad  com- 
pany, cannot,  under  general  laws  and  without  special  authority 
from  the  legislature,  be  appropriated  by  another  railway,  or 
for  any  other  public  use,  under  the  power  of  eminent  domain. 
Lewis  on  Emi.  Dom.,  p.  352,  sec.  267;  Randolph  on  Emi. 
Dom.,  pp.  88,  166;  93  Pa.,  150;  124  Mass.,  368;  53  N.  Y., 
574;  77  N.  Y.,  284;  98  N.  Y.,  6;  34  W.  Va.,  155;  23  Minn., 
167;  53  Ga.,  120;  48  Ohio  St.,  273;  82  Ala.,  297;  122  111., 
473;  84  N.  Y.,  308;  75  Va.,  780;  47  Cal.,  549;  98  Ga.,  164. 

That  the  legislature  of  the  state  of  Tennessee  has  never 
granted  such  authority  so  as  to  apply  to  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  and  present  possessions  is  very 
clear. 

1.  By  Acts  Tenn.,  1899,  ch.  399,  p.  920,  railroads  hereafter  to  be  built 
were  prohibited  from  taking  a  wider  strip  for  a  right  of  way  than  neces- 
sary, and  other  railroad  companies  were  empowered  to  condemn  a  joint 
use  of  their  tracks  through  narrow  passes  or  gorges,  or  along  cliffs. 
This  act,  however,  expressly  declared  that  it  should  only  apply  to  roads 
hereafter  to  be  built,  and  hence  does  not  apply  to  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  or  any  of  its  present  branches.     The  act 
itself  is  set  out  further  on  in  this  chaptei  and  speaks  for  itself. 

2.  In  Alabama  railroads  chartered  under  general  law  may  condemn 
right  of  way  of  other  roads,  but  not  its  roadbeds.     82  Ala.,  297;  87  Ala., 
501,  520. 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     757 

It  is  true  that  §  1549  of  the  code  of  Tennessee  (M.  &  V.) 
provides  that  "any  person  or  corporation  authorized  hy  law  to 
construct  any  railroad,  turnpike,  canal,  toll-bridge,  road, 
causeway,  or  other  work  of  internal  improvement,  to  which 
the  like  privilege  is  conceded,  may  take  the  real  estate  of  indi- 
viduals, not  exceeding  the  amount  prescribed  by  law,  or  by 
the  charter  under  which  the  person  or  corporation  acts,  in  the 
manner  and  upon  the  terms  herein  provided."  Code  Tenn. 
(M.  &  V.),  $  1549. 

It  is  further  true  that  by  the  acts  of  Tenn.  1885,  p.  245, 
this  section  was  amended  so  as  to  make  it  include  the  condem- 
nation of  property,  privileges,  rights,  and  easements  of  private 
corporations  for  public  purposes,  under  certain  conditions,  but 
neither  the  section  nor  its  amendment  confers  the  right,  in 

O          * 

express  terms,  to  condemn  property  already  devoted  to  railroad 
uses.  The  power,  therefore,  does  not  exist  in  Tennessee. 

The  right  of  eminent  domain  is  a  dominant  legislative  power, 
only  called  into  exercise  by  the  enactment  of  a  valid  statute, 
and  when  a  party  asserts  a  right  to  seize  land  previously  ap- 
propriated to  public  use,  he  must  sustain  his  claim  by  produc- 
ing a  statute  clearly  conferring  the  asserted  authority.  It  will 
not  be  presumed,  in  the  absence  of  such  a  statute,  that  the  leg- 
islature intended  to  again  seize  property  which  had  l>een  once 
appropriated  for  a  public  use.  88  Ind.,  453;  6  So.  R. ,  404; 
118  Mass.,  561;  8  Fed.  Rep.,  858;  68  N.  Y.,  167,  175;  36 
Conn.,  255;  Lewis  on  Em.  Dom.,  352,  364;  Randolph  on  Em. 
Dom.,  88,  166;  Elliott's  Roads  and  Streets,  167;  89  Ga.,  215; 
20  Hun.  (N.  Y.),  201;  98  Ga.,  164. 

Nor  will  the  authority  be  presumed  to  exist,  in  the  absence 
of  such  a  statute,  to  condemn  for  a  joint  use  with  the  elder 
company.  81  111.,  523. 

This  is  so,  whether  the  lands  were  originally  bought  or  con- 
demned. 17  R.  I.,  324;  21  Atl.  Rep.,  965. 

The  rule,  moreover,  is  not  confined  to  the  tracks  or  right  of 
way  of  a  railroad  company,  but  it  applies  also  to  the  grounds 
occupied  by  all  the  appliances  necessary  for  the  successful 
operation  of  the  road,  and  the  company  has  the  right  to  con- 


758  EMINENT    DOMAIN. 

struct  its  road  and  make  its  plans  with  a  liberal  consideration 
of  future,  as  well  as  of  existing,  necessities.  28  Am.  &  Eng. 
R.  R'.  Cases,  266;  122  Pa.  St.,  511;  6  All.  Rep.,  564;  9  Am. 
St.  Rep.,  128;  30  Minn.,  359;  91  N.  Y.,  552;  Lewis  on  Em. 
Dom.,  p.  352,  sec.  266. 

But  land  held  by  the  railway,  whether  acquired  by  purchase 
or  appropriation,  which  is  not  employed  in  nor  needed  for  the 
proper  exercise  of  its  corporate  franchise,  having  regard  to  the 
probable  expansion  and  increase  of  future  business,  is  not 
within  the  reason  or  operatioii  of  this  rule,  and  may  be  taken 
by  other  railways  under  the  power  of  eminent  domain.  47 
Am.  &  Eng.  R.  R.  Cases,  72;  48  Ohio  St.  273;'  27  N.  E. 
Rep.,  464;  17  W.  Va.,  812;  66  111.,  174;  Lewis  on  Em. 
Dom.,  p.  353;  sec.  267. 

It  has  also  been  held  that  property  acquired  by  a  railroad 
company  by  contract,  and  used  for  a  purpose  for  which  it  could 
not  condemn,  is  subject  to  the  power  of  eminent  domain  the 
same  as  though  it  belonged  to  an  individual.  19  Ohio  St., 
299;  Lewis  on  Em.  Dom.,  p.  355;  sec.  269. 

It  is  very  clear,  however,  as  before  explained,  that  as  regards 
all  property  and  right  of  way  necessary  for  railway  purposes, 
having  regard  to  the  probable  increase  and  expansion  of  future 
business,  that  no  law  now  exists  in  Tennessee  which  would 
enable  one  railroad  to  arbitrarily  condemn  the  whole,  or  even  a 
part,  of  the  right  of  way,  depot  facilities,  shops,  etc.,  of  an- 
other railroad. 

Moreover,  it  is  extremely  doubtful  whether  such  a  right  now 
exists,  even  though  that  part  of  the  right  of  way  sought  to  be 
appropriated  should  be  actually  necessary,  and  without  which 
the  condemning  road  could  not  get  from  one  of  its  termini  to 
the  other,  as,  for  instance,  through  a  mountain  pass  where 
there  was  no  other  possible  route.  But  even  should  this  latter 
right  exist,  it  must  be  clearly  shown  that  the  property  so 
sought  to  be  condemned  is  actually  necessary.  138  Mass., 
277;  Lewis  on  Em.  Dom.,  353;  16  Phila.  (Pa.),  621;  122 
Pa.  St.,  533;  17  Atl.  Rep.,  234;  124  Mass.,  368;  9  Am.  St. 
Rep.,  128. 


GENERAL    POWERS   OF   THE    N.,    C.    <t    ST.    L.    RY.  7  ;".!• 

Railways  chartered  in  the  future  may  have  joint  use  of  their  right  of 
way  condemned  through  narrow  passes,  gorges,  or  along  cliffs.  Acts 
Tenn.,  1899;  p.  920. 

It  certainly  could  not  do  so  where  the  condemnation  is 
sought  simply  for  the  sake 'of  convenience  or  economy.  28 
Am.  &  Eng.  R.  R.  Cases,  266;  122  Pa.  St.,  511;  4  Cold. 
(Tenn.),  419;  15  S.  E.  Rep.,  124;  89  Ga.,  215;  124  Mass., 
368;  9  Am.  St.  Rep.,  128.  4  Pick.  (Tenn.),  752. 

In  this  connection  it  might  be  mentioned  that  section    14  of 

O 

the  charter  of  the  railway  provides  that  "  the  company  shall 
have  the  exclusive  right  of  transportation  or  conveyance  of 
persons,  goods,  merchandise  and  produce  over  the  said  railroad 
by  them  to  be  constructed,"  etc.  Charter,  §  14. 

This  section  seems  at  first  blush  to  convey  a  franchise  exempt 
from  eminent  domain,  as  it  purports  to  convey  the  exclusive 
right  of  transportation  over  the  road.  Whether  the  legislature 
intended  to  do  so  or  not,  however,  is  immaterial,  as  the  grant  of 
such  a  right  would  be  unconstitutional.  The  state  cannot  bar- 

EJ 

gain  away  its  sovereign  power,  and  any  act  attempting  to 
divest  it  of  the  power  would  be  void,  even  though  incorporated 
in  the  charter  of  the  road.  Vol.  14  Am.  &  Eng.  Corp.  Cases, 
p.  417;  18  Conn.,  451;  102  Pa.  St.,  123;  48  Mich.,  433;  53 
Ala.,  211;  65  Ga.,  160;  7  N.  H.,  35:  Lewis  on  Em.  Dom., 
sec.  275. 

The  foregoing  discussion,  therefore,  is  made  independent  of 
this  section  of  the  charter,  which  is  only  referred  to  in  order 
to  show  it  was  not  overlooked. 

Can  future  legislation  change  tbis  law  so  as  to  legally 
authorize  other  roads  to  condemn  the  right  of  way,  depot 

facilities,  etc.,  Of  Other  roads?— That  the  legislature  cannot 
amend  the  charter  of  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  so  as  to  compel  it  to  allow  other  roads  to  use  its  depot 
facilities,  right  of  way,  etc.,  is  too  clear  for  argument,  as 
before  explained.  See  "Charter — How  Amended,"  p.  678 
et  seq.  herein. 

A  more  serious  question  arises,  however,  in  determining  the 
right  of  future  legislatures,  under  their  power  of  eminent 


760  EMINENT    DOMAIN. 

domain,  to  pass  an  act  in  express  terms  authorizing  railways  to 
condemn  a  right  of  way  over  the  whole  or  a  part  of  the  lines 
of  other  railways,  provided  a  fair  compensation  is  given  there- 
for. Many  authorities  seem  to  hold  that  such  an  act  would  be 
the  exercise  of  a  proper  legislative  authority.  45  Barb.,  138; 
s.c.  72  N.  Y.,  330;  60  Md.,  263;  Lewis  on  Em.  Dora.,  p.  355, 
sec.  269;  81  111.,  523. 

Other  writers,  however,  question  the  soundness  of  the  doc- 
trine. In  any  event,  the  right  does  not  now  exist  in  Tennessee. 

Right  of  cities  to  condemn  railroad  property  for  streets, 

alleys,  etc. — It  seems  to  be  well  settled  that  a  general  statutory 
power,  conferred  by  a  city  charter,  to  take  lands  for  public 
streets  will  not  be  presumed  to  authorize  the  city  to  take  land 
already  lawfully  appropriated  for  a  depot  building  and  appur- 
tenances by  a  corporation  duly  empowered  to  acquire  lands  for 
such  purposes.  30  Minn.,  359;  15  N.  W.  Rep.,  684;  23  Minn., 
167;  14  Am.  &  Eng.  R.  R.  Cases,  34;  91  N.  Y.,  552;  24  N. 
Y.,  345;  98  Ga.,  164. 

Under  such  general  authority  to  lay  out  highways,  a  part  of 
the  right  of  way  of  a  railroad  cannot  be  taken  longitudinally, 
nor  can  the  way  be  laid  through  depot  grounds,  shops,  and  the 
like,  which  are  devoted  to  special  uses  in  connection  with  the 
road  and  necessary  to  its  operation  and  in  constant  use  in  con- 
nection therewith.  39  N.  J.  L.,  28;  36  Conn.,  255;  30  Minn., 
359;  91  N.  Y.,  552;  53  Ga.,  120;  Lewis  on  Em.  Dom.,  p.  352, 
sec.  266;  98  Ga.  164. 

It  has  been  held,  however,  that  a  slight  interference  with  the 
platform  of  a  depot  would  not  prevent  the  establishment  of  a 
highway  or  street.  46  N.  J.  L.,  644. 

Right  of  cities  and  counties  to  construct  crossings  for 

Streets  and  highways.— A  general  authority  to  lay  out  high- 
ways and  streets  is  sufficient  to  authorize  a  layout  across  the 
right  of  way  of  a  railway.  Lewis  on  Emi.  Dom.,  p.  351,  sec. 
266;  23  Ohio  St.,  510;  49  Mo.,  480;  35  Minn.,  141;  24  N.  Y., 
345.  But  not  to  construct  crossings  so  as  to  go  through  depot 
buildings,  appurtenances,  yards,  etc.  Lewis  on  Emi.  Dom., 
p.  352,  sec.  266;  98  Ga.,  164.  Under  a  statute  which  pro- 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RY.  761 

vided  that,  if  a  turnpike  or  way  should  be  laid  out  over  a  rail- 
road "  the  said  turnpike  or  way  may  be  so  made  as  to  pass 
over  or  under  said  railroad,  and  said  turnpike  or  way  shall  in 
no  case  be  so  made  as  to  obstruct  or  injure  such  railroad',"'  it 
was  held  that  a  crossing  at  grade  could  not  be  made,  but  that 
the  "highway  musi  be  carried  under  or  over  the  railway  by  a 
bridge/'  Lewis  on  Erai.  Dom.,  p.  351;  2  Allen,  107;  58  Vt., 
234. 

A  statute  provided  as  follows:  "  When  a  new  way  or  road 
is  opened  or  made  across  a  way  or  road  already  existing  and 
in  use,  the  new  way  must  be  so  constructed  as  to  cause  as  little 
injury  as  possible  to  the  old  way  or  road."  It  was  held  that 
a  street  across  a  railroad  must  be  carried  over  by  a  viaduct. 
Id.;  46  Md.,  425. 

An  express  authority,  however,  to  lay  out  a  highway  across 
the  track  of  a  railroad  is  authority  to  cross  all  the  tracks  at 
any  place.  Id.;  24  N.  Y.,  345. 

It  has  also  been  held  that  the  question  whether  any  part  of 
the  land  of  a  railroad  in  or  adjacent  to  its  depot  grounds  is  in 
actual  use  for  depot  or  other  purposes  pertaining  to  the  opera- 
tion of  its  road,  could  only  be  determined  in  a  direct  proceeding 
for  that  purpose,  and  that  it  would  not  only  be  impracticable, 
but  impossible,  to  try  the  question  in  a  condemnation  proceed- 
ing. 92  Mich.,  33;  52  N.  W.  Rep.,  790. 

Before  a  city  or  county  can  construct  a  crossing,  however, 
they  must  show  the  necessity  therefor  and  condemn  the  same 
as  other  property  is  condemned  under  the  laws  of  eminent 
domain,  paying  the  railway  therefor.  Neither,  however,  can 
condemn  a  crossing  through  the  depot  grounds,  yards,  etc. 
See  8  Pick.  (Tenn.),  1.  See  code  Tenn.  (S.),  §1844  et  seq.; 
also  code  Tenn.  (S.),  §  1617  et  seq.;  96  Ala.,  571. 

When  a  street  is  opened  across  the  track  of  a  railroad,  it  does  not 
preclude  the  railroad  company  from  laying  additional  tracks  at  the 
crossing  when  necessary.  '.'1  Ga.,  573. 

Right  of  railways  to  condemn  crossings  of  other  rail- 
ways.—By  the  acts  of  Tenn.  1851-2,  ch.  151,  sec.  16,  it  was 
provided  that  ••  nil  the  railroads  of  the  state  shall  have  power 


762  EMINENT    DOMAIN. 

to  construct  their  roads  so  as  to  cross  each  other,  if  necessary, 
by  the  main  trunks  or  branches,  or  to  unite  with  each  other  as 
with  branches."  Code  Tenn.  (M.  &  V.),  §  1249 a;  code  Tenn. 
(S.),-§1504. 

This  section  is  a  general  amendment  to  railroad  charters, 
and  empowers  a  railroad  whose  charter  authorizes  it  to  con- 
demn land  for  a  right  of  way  to  condemn  it  in  like  manner  for 
crossings  with  other  railways,  and  it  has  the  rights,  and  is  lia- 
ble only,  as  in  other  condemnation  cases.  14  Lea  (Tenn.),  65. 

For  right  in  the  States  of  Alabama,  Georgia,  and  Kentucky,  see  p.  — 
herein. 

Right  of  telephone  and  telegraph  companies  to  condemn 
right  of  way  over  railway  bridges ;  trestles  right  of  way, 

etc. — Any  person  or  corporation,  organized  by  virtue  of  the 
laws  of  this  state,  or  of  any  other  state  of  the  United  States,  or 
by  virtue  of  the  laws  of  the  United  States,  for  the  purpose  of 
transmitting  intelligence  by  magnetic  telegraph  or  telephone, 
or  other  system  of  transmitting  intelligence  the  equivalent 
thereof,  which  may  be  hereafter  invented  or  discovered,  may 
construct,  operate,  and  maintain  such  telegraph,  telephone,  or 
other  lines  necessary  for  the  speedy  transmission  of  intelligence 
along  and  over  the  public  highways  and  streets  of  the  cities 
and  towns  of  this  state,  or  across  and  under  the  waters,  and 
over  any  lands  or  public  works  belonging  to  this  state,  and  on 
and  over  the  lands  of  private  individuals,  and  upon,  along,  and 
parallel  to  any  of  the  railroads  or  turnpikes  of  this  state,  and 
on  and  over  the  bridges,  trestles,  or  structures  of  said  rail- 
roads. Acts  Tenn.  1885,  p.  120,  ch.  66,  sec.  1  [Shannon's 
code  Tenn.,  §1830]. 

1.  The  supreme  court  held   that  nominal  damages  alone  should  be 
given  a  railroad  by  a  telegraph  company  for  space  occupied  on  right  of 
way  by  its  posts,  where  the  use  of  the  railroad  of  said  right  of  way  is 
not  interfered  with.     17  Pick.  (Tenn.).  62. 

2.  For  rights  of  telephone  and  telegraph   companies  to  condemn  in 
Alabama,  Georgia,  and  Kentucky,  see  further  on  in  this  chapter. 

No  Obstructions;  damages. — But  the  ordinary  use  of  such 
public  highways,  streets,  works,  railroads,  bridges,  trestles,  or 
structures  and  turnpikes  shall  not  be  thereby  obstructed,  nor  the 


GENERAL    POWERS    OF    THE    N.,    C.    A   ST.    L.    RY. 

navigation  of  said  waters  impelled,  and  that  just  damages  shall 
be  paid  to  the  owners  of  such  lands,  railroads,  and  turnpikes, 
by  reason  of  the  occupation  of  said  lands,  railroads,  and  turn- 
pikes by  said  telegraph  or  telephone  corporations.  Acts  Tenn. 
1885,  p.  120,  sec.  1  [Shannon's  code  Tenn.,  §  1831.  See,  also, 
1868-71]. 

Condemnation. — That  in  the  event  such  telegraph  or  telephone 
companies  should  fail,  upon  application  to  such  individuals,  rail- 
roads, or  turnpike  companies,  to  secure  such  right  of  way  by  con- 
sent, contract  or  agreement,  then  such  telegraph  or  telephone  cor- 
porations shall  have  the  right  to  proceed  to  procure  the  con- 
demnation of  such  property,  lands,  rights,  privileges,  and  ease- 
ments in  the  manner  prescribed  by  law  for  taking  private 
property  for  works  of  internal  improvement.  Acts  Tenn. 
1885,  p.  120,  sec.  2;  [Shannon's  code,  §  1832];  see  also 
§  1868-71. 

[The  manner  of  condemning  is  set  out  further  on  in  this  chap- 
ter.] 

Only  nominal  damages  allowed  where  use  by  railroad  not  interfered 
with.  17  Pick.  (Tenn.),  62. 

Peaceful  entry  to  survey,  etc.;  damages.— When  any  such 

telegraph  or  telephone  company  shall  desire  to  construct  lines 
on  or  along  the  lands  of  individuals,  or  on  the  right  of  way 
and  structures  of  any  railroad,  or  upon  and  along  any  turn- 
pike, the  said  telegraph  or  telephone  company  may  by  its 
agents  have  the  right  to  peacefully  enter  upon  such  lands, 
structures,  or  right  of  way,  and  survey,  locate,  and  lay  out  its 
said  lines  thereon,  being  liable,  however,  for  any  damage  that 
may  result  by  reason  of  such  act.  Acts  Tenn.  1885,  p.  120, 
sec.  3;  [Shannon's  code  Tenn.,  §  1833.] 

Under  the  above  acts  a  telegraph  or  telephone  company  will 
have  the  right  to  erect  its  poles  along  the  right  of  way  of  the 
railway,  either  within  the  space  inclosed  by  fence  or  on  the 
outside,  provided  they  do  not  interfere  with  or  obstruct  the 
operation  of  the  railway,  and,  provided  further,  that  reason- 
able compensation  is  paid  therefor,  lx>th  to  the  railway  and  to 


764  EMINENT    DOMAIN. 

the  landowners  at  those  points  along  the  right  of  way  where 
the  railway  does  not  own  the  fee. 

The  railroad  company  owns  the  fee  if  it  condemned  under  section  24 
of  its  charter.  4  Sneed  (Tenn.),  528  [280]. 

This  is  so,  as  by  operation  of  law  where  the  parties  did  not 
apply  in  time  for  assessment,  the  railway  only  took  from  the 
landowner  the  one  hundred  feet  on  each  side  of  the  center  of 
the  track,  as  an  easement.  It  did  not  take  the  fee,  and  when 
the  telegraph  or  telephone  companies  attempt  to  condemn  a 
right  of  way  it  will  be  attempting  to  subject  the  land  to  another 
and  a  different  servitude  not  contemplated  in  the  original  con- 
demnation proceedings,  and  for  that  reason  the  landowners, 
heirs  or  assigns,  will  be  entitled  to  additional  compensation. 
See  17  Pick.  (Tenn.),  62. 

The  condemnation  proceedings,  however,  will  have  to  be  in- 
stituted in  every  county  through  which  the  telegraph  or  tele- 
phone companies  propose  to  run  their  lines. 

Railroads  hereafter  to  be  built,  not  to  take  wider  strip  for 
right  of  way  than  necessary.  Other  roads,  rights  as  to, 

When. — No  railroad  company,  whose  railroad  may  hereafter  be 
built  in  this  state,  shall  have  the  right  to  hold  to  the  exclusion 
of  other  railroads  to  be  hereafter  built,  by  purchase  or  condem- 
nation for  its  right  of  way,  a  wider  strip  of  land  than  shall  be 
necessary  for  its  reasonable  use  in  the  transaction  of  its  busi- 
ness; and  any  land  owned,  or  right  of  way  held,  or  hereafter 
acquired  by  any  such  railroad  company,  which  a  jury  of  inquiry 
in  condemnation  proceedings  shall  find  necessary  for  such  rea- 
sonable use  and  business  of  the  company,  may  be  condemned  for 
the  use  of  other  railroads  now  under  construction,  or  hereafter 
to  be  built,  in  like  manner  as  other  private  property.  And  no 
railroad  company  shall  have  the  right,  by  surveying  or  locating 
its  line  of  railroad,  to  defer  building  the  same  to  the  exclusion 
of  other  companies  that  may  sooner  and  more  certainly  build 
upon  such  line  of  route,  but  the  company  which,  in  good 
faith,  first  actually  constructs  its  road  over  such  route,  shall 
have  preference  in  the  location  thereof;  Provided,  That,  if  in 
determining  any  controversy  over  same,  it  shall  appear  to  the 


GENERAL    POWERS   OF   THE    N.,    C.    A    8T.    L.    KV.  7 ''>.". 

court  that  the  second  company,  in  good  faith,  intends  to,  and 
probably  will  construct  its  road,  the  first  line  constructed  shall 
be  located,  if  practicable,  so  as  not  to  make  it  unreasonably  ex- 
pensive to  construct  the  other  one.  Acts  Tenn.  1899,  ch. 
399,  p.  920,  sec.  1. 

It  will  be  noticed  that  the  above  act  only  applies  to  railroads  "here- 
after to  be  built "  and  hence  does  not  apply  to  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway,  and  present  branches. 

Other  roads  may  condemn  joint  use  of  tracks  in  narrow 
passes,  gorges,  or  along  cliffs  of  future  roads,  when  and 

how. — In  case  any  railroad  company  has  acquired  or  owns  a 
right  of  way,  over  which  its  road  is  not  already  built,  through 
or  along  any  narrow  pass,  cliff,  or  gorge,  where  it  may  be  un- 
reasonably expensive  or  impracticable  to  put  down  more  than 
one  track  or  line  of  railroad,  any  other  railroad  company,  in 
good  faith,  desiring  to  build  its  line  of  road  through  or  along 
the  same  narrow  pass,  cliff,  or  gorge  shall  have  the  right  to 
condemn  a  joint  use  of  the  right  of  way  through  or  along  the 
same,  and  if,  after  any  railroad  hereafter  to  be  constructed 
through  or  along  the  same  shall  already  have  been  constructed, 
any  other  railroad  so  desiring  to  build  through  or  along  such 
narrow  pass,  gorge,  or  cliff  shall  have  the  right  to  condemn  a 
joint  use  of  so  much  of  the  track  as  may  be  necessary,  in  like 
manner  as  railroads  have  the  right  to  cross  each  other;  Pro- 
vided, That  reasonable  condensation  shall  be  paid  to  the  rail- 
road company  owning  such  right  of  way,  or  to  the  one  whose 
right  of  way,  or  right  of  way  and  track,  may  be  so  condemned 
for  such  joint  use  with  the  other  road,  for  its  property  and 
improvements  and  injury  to  its  business,  if  any,  which  com- 
pensation, together  with  such  reasonable  restrictions  as  the 
jury  of  inquiry  may  prescribe  at  the  expense  of  the  second 
road  for  safely  using  such  joint  track,  shall  be  fixed  by  said 
jury  as  in  other  cases  of  assessment  of  damages  in  the  condem- 
nation of  private  property;  Provided  further,  That  nothing 
herein  contained  shall  be  construed  to  affect  any  rights  railroad 
companies  whose  roads  are  already  constructed  and  being  op- 
erated may  have  in  respect  to  rights  of  way  over  which  rail- 


766  EMINENT    DOMAIN. 

roads  are  already  being  operated,  it  being  the  intention  of 
this  act  not  to  in  any  manner  add  to  or  take  from  such 
rights  as  they  may  have  therein,  but  to  mutually  apply  only  to 
roads  or  extensions  or  branch  roads  hereafter  to  be  built;  And 
provided  furthermore,  That  nothing  herein  contained  shall  be 
construed  to  allow  any  railroads  to  consolidate,  or  escape  pay- 
ment of  taxes  on  such  new  lines  as  may  be  constructed,  or  such 
extensions  as  may  be  made  hereunder.  Acts  Tenn.  1899,  ch. 
399,  p.  920,  sec.  2. 

It  will  be  noticed  that  the  above  act  only  applies  to  railroads  "here- 
after to  be  built,"  and,  hence,  does  not  apply  to  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  and  present  branches. 

HOW  LAND  MAY  BE  CONDEMNED. 

[in  Tennessee.]    Land  may  be  taken  for  improvements.— 

Any  person  or  corporation  authorized  by  law  to  construct  any 
railroad,  turnpike,  canal,  toll- bridge,  road,  causeway,  or  other 
work  of  internal  improvement  to  which  the  like  privilege  is 
conceded,  may  take  the  real  estate  of  individuals  not  exceeding 
the  amount  prescribed  by  law,  or  by  the  charter  under  which 
the  person  or  corporation  acts,  in  the  manner  and  upon  the 
terms  herein  provided.  Code  Tenn.  (M.  &  V.)  §  1549  (1325); 
[Shannon's  code  Tenn.  §  1844.] 

By  acts  of  Tenn.  1885,  p.  245,  this  section,  together  with  those  follow- 
ing-, up  to  and  including  sec.  1572,  were  extended  so  as  to  include  the 
condemnation  and  taking  the  property,  privileges,  rights,  or  easements 
of  private  corporations  for  public  purposes  or  internal  improvements. 
There  is  a  provision,  however,  in  the  act  as  to  telegraph  and  telephone 
companies,  which  is  here  omitted  as  it  does  not  affect  railroads.  Rail- 
ways may  condemn  land  under  this  for  depots,  way  of  approach,  etc., 
11  Hum.  (Tenn.),  349.  This  section  does  not  apply  to  private  enter- 
prises, however  great  their  public  convenience.  4  Cold.  (Tenn.),  419. 
Hence  it  does  not  apply  to  freight  elevators.  Id. ;  4  Pick.  (Tenn.),  752. 
The  land  of  persons  under  disability  may  be  taken  like  that  of  other 
people.  3  Head  (Tenn.),  63. 

By  acts  Tenn.  1885,  ch.  39,  p.  94,  cities  were  allowed  to  condemn  land 
under  these  sections  adjacent  to  corporation  line  for  waterworks  pur- 
poses, pumping  station  or  reservoir,  right  of  way  for  water  pipe  from 
pumping  station  or  reservoir,  etc. 

By  acts  of  Tenn.  1891,  ch.  41,  p.  77,  municipal  corporations  allowed  to 
condemn  under  these  sections  for  new  streets,  avenues,  squares,  parks, 


GENERAL    POWERS    OF    THE    N.,    C.    A    8T.    L.    RY.  767 

promenades,  sewers,  gasworks,  hay  markets,  markethouse,  tire  engine 
house,  station  and  workhouses,  etc . 

Hy  acts  Tenn.  1889,  ch.  140,  p.  389,  street  railways  allowed  additional 
privileges  of  condemnation  under  these  sections. 

Counties  may  condemn  land  under  these  sections  for  turnpikes,  etc. 
8  Pick.  (Tenn.),  1. 

For  what  railroads  may,  and  may  not,  condemn  under  these 

sections. — A  railroad  company  may  condemn  land  for  its  right 
of  way;  for  a  way  of  approach  to  its  road;  and  for  a  depot, 
but  not  for  depositories,  storehouses,  houses  for  agents,  work- 
shops, etc.  11  Hum.  (Tenn.),  349-52.  But  see  discussion  of 
this  in  first  part  of  heading  "  Eminent  Domain." 

No  legislative  power  to  authorize  condemnation  for  certain 

enterprises. — Under  these  sections,  as  for  instance,  a  saw  mill 
and  paper  mill  combined.  3  Yer.  41,  51-54.  A  railway  for 
an  incorporated  elevator  company,  from  its  sheds  to  a  river, 
for  loading  and  unloading  boats,  4  Cold.  (Tenn.),  419.  A 
railway  for  an  incorporated  hotel  company,  from  the  hotel 
to  the  river  or  depot.  4  Cold.  (Tenn.),  425.  A  church  or 
schoolhouse.  4  Cold.  (Tenn.),  425. 

But  property  may  be  condemned  for  grist  mills.  3  Yer.  41, 
51-53;  Code  Tenn.,  (M.  &  V.),  2653;  [Shannon's  Code  (Tenn.), 
*  3437]. 

Telegraph  and  telephone  companies.— These  companies  may 

also  condemn  land  under  these  sections.  They  may  condemn 
use  of  railroad  right  of  way.  Only  nominal  damages  to  be 
paid  where  use  of  railroad  not  interfered  with.  17  Pick.  (Tenn. ), 
62,  95. 

Proceedings,  petition,  etc. — The  party  seeking  to  appropriate 
such  land  shall  file  a  petition  in  the  circuit  court  of  the  county 
in  which  the  land  lies,  setting  forth  in  substance: 

1.  The  parcel  of  land,  a  portion  of  which  is  wanted,  and  the 
extent  wanted. 

As  to  sufficiency  of  description  see  3  Lea,  482. 

2.  The  name  of  the  owner  of  such  land,  or,   if  unknown, 
stating  the  fact. 

3.  The  object  for  which  the  land  is  wanted. 

4.  A  prayer  that  a  suitable  portion  of  land  may  be  decreed 


768  EMINENT    DOMAIN. 

to  the  petitioner,  and  set  apart  by  metes  and  bounds.  Code 
Tenn.  (M.  &  V.),  §  1550  (1326);  [Shannon's  Code  (Tenn.), 
§  1845]. 

Opening  and  closing  case. — The  burden  of  proof  being  upon  the 
party  seeking  the  condemnation  to  show  the  necessity  thereof,  he  is 
entitled  to  open  and  close  the  case.  4  Pick.  (Tenn.),  510. 

See  Iowa  Code  1851,  \  760.     Petition  need  not  be  sworn  to.     2  Iowa,  562. 

Notice  to  Owner. — Notice  of  this  petition  shall  be  given  to  the 
owner  of  the  land,  or,  if  a  nonresident  of  the  county,  to  his 
agent,  at  least  five  days  before  its  presentation.  Code  Tenn. 
(M.  &  V. ),  §  1551  (1327);  [Shannon's  code  (Tenn.),  §  1846]. 

Owner  nonresident,  proceeding.— If  the  owner  is  a  nonresi- 
dent of  the  state,  or  unknown,  notice  shall  be  given  by  publica- 
cation,  as  provided  in  this  code  in  similar  cases  in  chancery. 
Code  Tenn.  (M.  &  V.),  §1552  (1328);  [Shannon's  code 
(Tenn.),  §1847]. 

Proceedings  Only  bind  parties.— All  parties  having  any  in- 
terest in  any  way  in  such  land  may  be  made  defendants  ;  and 
the  proceedings  will  only  cover  and  affect  the  interest  of  those 
who  are  actually  made  parties,  unborn  remainder- men  being, 
however,  bound  by  proceedings  to  which  all- living  persons  in 
interest  are  parties.  Code  Tenn.  (M.  &  V.),  §  1553  (1329); 
[Shannon's  code  (Tenn.),  §  1848]. 

As  to  parties,  see  2  Head,  65,  176.  A  tenant  for  life,  or  for  years,  as 
well  as  the  owner  of  the  reversion,  is  an  interested  party,  and  must  be 
compensated.  Same. 

Writ  Of  inquiry  Of  damages.— After  the  requisite  notice  has 
been  given,  if  no  sufficient  cause  to  the  contrary  is  shown,  the 
court  shall  issue  a  writ  of  inquiry  of  damages  to  the  sheriff, 
commanding  him  to  summon  a  jury  to  inquire  and  assess  the 
damages.  Code  Tenn.  (M.  &  V.),  §1554  (1330);  [Shan- 
non's code  (Tenn.),  §  1849]. 

Clerk  to  issue  writ ;  sheriff  to  summons  jury.— By  consent 

of  parties,  or  on  application  of  the  plaintiff,  unless  objection  is 
made  by  the  defendant,  the  writ  of  inquiry  may  be  issued  by 
the  clerk,  as  of  course,  after  service  of  notice,  on  which  the 
sheriff  will  summon  the  jury.  Code  Tenn.  (M.  &  V.),  §  1555 
(1331);  [Shannon's  code  (Tenn.),  §  1850]. 


GENERAL    PoUKKS    <>F    THE    N.,    C.    A    ST.    L.    HY.  7»>.' 

Jury  tO  be  disinterested. — The  jurors  shall  not  lie  interested 
in  tli<-  siune,  or  a  similar  question,  and  shall  jx>ssess  the  quali- 
tici tit >ns  of  other  jurors,  and  may  be  nominated  by  the  court, 
selected  by  consent  of  parties,  or  summoned  by  the  sheriff. 
('<>.!<•  Tenn.  (M.  &  V.),  §1556  (1332; ;  [Shannon's  code 
(Tenn.),  §1851]. 

Failure  tO  attend. — If  named  by  the  court,  and  the  Arsons 
iwmt'd  are  unable  to  attend  when  summoned,  the  place  of  such 
persons  shall  be  supplied  by  the  sheriff.  Code  Tenn.  (M.  &  V.), 
§  1557  (1333);  [Shannon's  code  (Tenn.),  §  1852]. 

Number  of  jurors;  challenges.— The  jury  will  consist  of 

five  persons,  unless  the  parties  agree  upon  a  different  number, 
and  either  party  may  challenge  for  cause,  or  peremptorily,  as 
mother  civil  cases.  Code  Tenn.  (M.  &  V.),  §1558  (1334); 
[Shannon's  code  (Tenn.),  §  1553]. 

Where  five  were  appointed  by  the  court,  but  two  having  failed  to 
appear,  the  sheriff  summoned  two  others  in  their  stead,  and  the  report 
was  signed  by  the  original  three,  it  was  held  good.  12  Heia.  (Tenn.), 
54.  57. 

Notice  Of  taking  inquest. — The  sheriff  shall  give  the  parties, 
or  their  agents,  if  residents  of  the  county,  three  days'  notice  of 
the  time  and  place  of  taking  the  inquest,  unless  the  time  has 
been  fixed  by  the  order  of  court.  Code  Tenn.  (M.  &  V.), 
§  1559  (1335);  [Shannon's  code  (Tenn.),  §  1854]. 

Jury  tO  be  SWOrn  by  Sheriff.— The  jury,  before  proceeding 
to  act,  shall  be  sworn  by  the  sheriff,  fairly  and  impartially, 
without  favor  or  affection,  to  lay  off  by  metes  and  bounds  the 
lands  required  for  the  proposed  improvements,  and  to  inquire 
and  assess  the  damages.  Code  Tenn.  (M.  &  V.),  §  1560 
(1336);  [Shannon's  Code  (Tenn.),  §  1855]. 

To  examine  ground  and  assess  damages.— The  jury  will 

then  proceed  to  examine  the  ground,  and  may  hear  testimony, 
but.  no  argument  of  counsel,  and  set  apart,  by  metes  and 
bounds,  a  sufficient  quantity  of  land  for  the  purposes  intended, 
and  assess  the  damages  occasioned  to  the  owner  thereby.  Code 
Tenn.  (M.  &  V.),  §  1561  (1337);  [Shannon's  Code  (Tenn.), 
§  1856]. 
49 


770  EMINENT    DOMAIN. 

As  to  sufficiency  of  description,  see  3  Lea,  48?. 

This  was  a  case  on  trial  in  circuit  court. 

The  roadbed  is  a,  permanent  landmark,  and  the  description  is  sufficient 
where  the  jury  designate  the  distance  from  the  center  of  the  railroad 
track  on  each  side.  3  Lea  {Tenn. ),  482.  But  the  points  of  beginning 
and  ending  on  the  road  should  be  designated  in  some  way. 

Where  railway  fails  to  institute  proceedings,  or  in  any  manner  to  des- 
ignate the  land  to  be  appriated  for  the  right  of  way,  its  entry  and  con- 
struction of  its  road  must  be  regarded  as  an  appropriation  of  so  much  of 
the  land  as  the  law  authorizes  for  such  purposes.  3  Lea  (Tenn.),  481. 

Damages  ;  hOW  estimated. — In  estimating  the  damages  the 
jury  shall  give  the  value  of  the  land  without  deduction,  but  in- 
cidental benefits  which  may  result  to  the  owner  by  reason  of 
the  proposed  improvement  may  be  taken  into  consideration  in 
estimating  the  incidental  damages.  Code  Tenn.  (M.  &  V.), 
§1562(1338);  [Shannon's  Code,  (Tenn.),  §1857. 

"  The  value  of  the  land  "  is  the  fair  cash  value  of  the  land  taken  for 
public  use,  if  the  owner  were  willing  to  sell,  and  the  company  desired 
to  buy  that  particular  quantity  at  that  place  and  in  that  form.  2  Swan 
(Tenn),  437;  9  Heis.  (Tenn.),  508;  12  Heis.  (Tenn.),  56;  9  Heis.  (Tenn.), 
509;  3  Head  (Tenn.),' 67,  600;  and  this  too  without  deduction.  See  also 
4  Pick.,  510. 

Only  nominal  damages  where  telegraph  company  condemns  use  of 
railroad  right  of  way  when.  17  Pick.,  62.  In  ascertaining  the  value  of 
the  land,  incidental  benefits  and  advantages  are  not  to  be  considered, 
but  they  are  to  be  coasidered  and  set  off-  against  incidental  damages. 
2  Swan  (Tenn.),  437,  and  cases  cited  above. 

Incidental  benefits  are  : — The  general  enhancement  of  lands  in  the 
neighborhood;  the  special  effect  of  a  location  at  that  particular  place; 
the  enhancement  in  price  of  the  remainder  of  the  land,  and  the  increased 
facilities  of  travel,  etc.  See  also  4  Pick.  (Tenn. ),  510. 

Incidental  damages  are  : — The  necessity  for  new  fences;  removal  of 
buildings;  being  cut  off  from  wells,  mills,  barns,  servants'  houses,  etc.; 
2  Swan  (Tenn.),  439-40;  12  Heis.  (Tenn.),  56;  9  Heis.  (Tenn.),  508. 

Incidental  damages,  resulting  to  landowner  from  the  taking  of  a  por- 
tion of  his  lauds,  must  be  estimated  upon  the  assumption  that  the  lands 
taken  will  be  applied,  within  a  reasonable  time  and  in  a  proper  manner, 
to  the  use  for  which  they  were  condemned,  and  that  due  care  and  proper 
skill  will  be  exercised  in  the  manner  of  their  use.  4  Pick.  (Tenn.),  510. 

Where  damage  results  to  other  property  from  wrongful  or  negligent 
use,  original  suit  must  be  brought.  4  Pick.  (Tenn.),  510,  523-26;  7  Lea 
(Tenn.),  388;  11  Lea  (Tenn.),  382. 

Depreciation  of  remaining  land  caused  by  the  reasonable  apprehen- 
sion of  danger,  excited  by  the  erection  of  a  reservoir  upon  the  part  taken, 
on  account  of  its  liability  to  inherent  defects  and  unavoidable  accidents, 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     771 

notwithstanding  skilful  construction  and  careful  operation,  is  properly 
incidental  damages.  4  Pick.  (Tenn.),  510. 

Interest  allowed  upon  amount  of  damages  assessed  from  the  taking 
and  appropriation  of  the  land.  4  Pick.  (Tenn.),  510.  Where  it  has  not 
been  allowed  in  the  court  below,  however,  and  should  have  been,  the 
supreme  court  may  correct  the  judgment  in  that  particular  without 
reversing  and  remanding  case.  liJ. 

The  inquiry  as  to  fair  market  value,  in  cash,  must  be  restricted,  both 
in  evidence  and  the  court's  charge,  to  the  general  value  of  the  land, 
estimated  upon  consideration  in  a  single  view  of  all  the  elements  of 
value.  Estimates  based  upon  particular  qualities  or  capabilities  of 
the  land — such  as  its  value  as  a  stone  quarry,  or  its  suitableness  for  a 
reservoir  site,  to  the  exclusion  of  all  other  elements  of  value,  are  inad- 
missible. Such  elements  of  value  must  not  be  priced  separately,  but  the 
land,  with  all  its  qualities  and  capabilities,  must  IK-  taken  and  valued 
as  one  whole.  4  Pick.  (Tenn.),  510. 

Separate  action  for  overflowing  lands. — To  recover  damages  for  care- 
less, negligent,  or  wrongful  use  of  property  taken,  independent  action 
must  be  brought.  Hence,  where  railway  negligently  constructs  its  road- 
bed so  as  to  dam  up  the  surface  water,  or  any  stream  causing  overflow 
of  adjoining  lands,  it  is  liable,  but  independent  action  must  be  brought. 
7  Lea  (Tenn.),  388;  11  Lea  (Tenn.),  382;  6  Pick.  (Tenn.),  157;  4  Pick. 
(Tenn.),  5 '23.  Overflow  for  twenty  years  gives  right,  however.  Id. 

Report  returned  in  writing. — The  report  of  the  jury  shall  be  reduced 
to  writing,  signed  by  a  majority  of  the  jurors,  delivered  to  the  sheriff, 
and  by  him  returned  into  court.  Code  Tenn.  (M.  &  V.),  \  1563,  (1339); 
[Shannon's  Code  (Tenn.)  §  1858]. 

Confirmation  Of  report. — If  no  objection  is  made  to  the 
report,  it  is  confirmed  by  the  court,  and  the  land  decreed  to 
the  petitioner,  upon  payment  to  the  defendants,  or  to  the  clerk 
for  their  use,  of  the  damages  assessed,  with  costs.  Code  Tenn. 
(M.  &  V.),  §  1564,  (1340);  [Shannon's  Code  (Tenn.),  §  1859]. 

Exception  tO  report  and  new  writ.— Either  party  may  object 
to  the  report  of  the  jury,  and  the  same  may,  on  good  cause 
shown,  be  set  aside  and  a 'new  writ  of  inquiry  awarded.  Code 
Tenn.  (M.  &  V.),  §  1565,  (1341);  [Shannon's  Code  (Tenn.), 
§  I860]. 

Appeal ;  new  trial.— Either  party  may,  also,  apj>eal  from  the 
finding  of  the  jury,  and  on  giving  security  for  the  costs,  have 
a  trial  anew  before  the  jury  in  the  usual  way.  Code  Tenn. 
(M.  &  V.),  §  1566,  (1342);  [Shannon's  Code  (Tenn.),  §  1861J. 

Appeal  lies,  although  there  was  a  second  jury  and  new  writ  of  inquiry, 
under  the  last  section.  12  Ileis.  (Tenn),  57. 


772  EMINENT    DOMAIN. 

Costs  against  appellant,  when  not.— if  the  verdict  of  the 

jury,  upon  trial,  affirms  the  finding  of  the  jury  of  inquest,  or 
is  more  unfavorable  to  the  appellant  than  the  finding  of  such 
a  jury,  the  costs  shall  be  adjudged  against  such  appellant; 
otherwise,  the  court  may  award  costs  as  in  chancery  cases. 
CodeTenn.  (M.  &  V.),  §  1567  (1343);  [Shannon's  code  (Tenn.), 
§  1862]. 

Appeal  does  not  Suspend  work ;  how.— The  taking  an  appeal 
does  not  suspend  the  operations  of  the  petitioner  on  the  land, 
provided  such  petitioner  will  give  bond,  with  good  security,  to 
be  approved  by  the  clerk,  in  double  the  amount  of  the  assess- 
ment of  the  jury  of  inquest,  payable  to  the  defendants,  and 
conditioned  to  abide  by  and  perform  the  final  judgment  in  the 
premises.  Code  Tenn.  (M.  &  V.),  §1568  (1344);  [Shannon's 
code  (Tenn.),  §  1863]. 

Preliminary  surveys;  damages.— A  person  or  company 

actually  intending  to  make  application  for  the  privileges  herein 
contemplated,  and  entering  upon  the  land  of  another  for  the 
purpose  of  making  the  requisite  examination  and  surveys,  and 
doing  no  unnecessary  injury,  is  liable  only  for  the  actual  dam- 
age done,  and,  if  sued  in  such  case,  the  plaintiff  shall  recover 
only  as  much  costs  as  damages.  Code  Tenn.  (M.  &  V.),  §  1569 
(1345);  [Shannon's  code  (Tenn.),  §  1864]. 

Damages  to  be  prepaid,  or  bond  on  appeal.— No  person  or 

company  shall,  however,  enter  upon  such  land  for  the  purpose 
of  actually  occupying  the  right  of  way  until  the  damages 
assessed  by  the  jury  of  inquest  and  the  costs  have  been  actually 
paid,  or,  if  an  appeal  has  been  taken,  until  the  bond  has  been 
given  to  abide  by  the  final  judgment,  as  before  provided.  Code 
Tenn.  (M.  &  V.),  §  1570  (1346);  [Shannon's  code  (Tenn.), 
§1865]. 

If  the  damages  are  not  paid,  or  bond  given  as  provided  for  when  an 
appeal  is  taken,  equity  will  enforce  payment,  or  restore  the  owner  to 
his  property.  6  Cold.  (Tenn.),  150,  162;  7  Heis.  (Tenn.),  518,  535.  See 
also  notes  to  \  1562,  (M.  &  V.)  code  Tenn. 

Construing1  this  and  the  next  section  together,  the  property  may  be 
taken  before  compensation  is  actually  paid,  but  only  after  certain  pro- 
vision has  been  made  for  the  payment.  Id.;  13  Lea  (Tenn.),  671. 


GENERAL    POWERS   OF  THE    N.,    C.    <fe    ST.    L.    RY.  773 

Owner  may  have  inquest,  or  sue  for  damages,  when  ;  and 

proceedings. — If,  however,  such  person  or  company  has  actu- 
ally taken  possession  of  such  land,  occupying  it  for  the  pur- 
poses of  internal  improvement,  the  owner  of  such  land  may 
petition  for  a  jury  of  inquest,  in  which  case  the  same  proceed- 
ings may  be  had,  as  near  as  may  be,  as  hereinbefore  provided; 
or  he  may  sue  for  damages  in  the  ordinary  way,  in  which  case 
the  jury  shall  lay  off  the  land  by  metes  and  bounds  and  assess 
the  damages,  as  upon  the  trial  of  an  appeal  from  the  return  of 
a  jury  of  inquest.  Code  Tenn.  (M.  &  V.),  §  1571  (1347); 
[Shannon's  code  Tenn.,  §  1866]. 

Commissioners  may  be  appointed  whether  parties  have  made  an 
unsuccessful  effort  to  agree  or  not.  2  Head,  624,  626.  Owner  may  either 
file  petition  for  a  jury,  or  bring  an  action  on  the  facts  of  the  case.  3 
Lea,  678;  2  Lea,  620;  2  Head,  65,  171;  or  he  may  enjoin.  (Sec.  1570.)  But 
the  owner  will  be  estopped  from  bringing  ejectment  if  he  permitted  pos- 
session to  be  taken,  and  consented  in  the  first  instance  for  the  improve- 
ments to  be  made.  2  Lea,  655.  Party  applying  for  compensation  must 
show  title.  3  Head,  63.  The  statutory  remedy  provided  above  is  not 
exclusive,  and  the  landowner  is  not  bound  to  exhaust  that  remedy 
before  resorting  to  a  court  of  equity.  13  Lea,  669;  3  Lea,  480.  Tenant 
for  life  or  years  must  be  compensated.  2  Head,  174-76.  Tenant  may 
sue  for  trespass  for  destroying  his  crops.  2  Head,  65. 

Limitation  of  proceedings  by  owner,  and  saving.  — The 

owners  of  land  shall,  in  such  cases,  commence  proceedings 
within  twelve  months  after  the  land  has  actually  been  taken 
possession  of,  and  the  work  of  the  proposed  internal  improve- 
ment begun  ;  saving,  however,  to  unknown  owners  and  non- 
residents, twelve  months  after  actual  knowledge  of  such  occu- 
pation, not  exceeding  three  years  ;  and  saving  to  persons  under 
the  disabilities  of  infancy,  coverture,  and  unsoundness  of  mind, 
twelve  months  after  such  disability  is  removed,  but  not  exceed- 
ing ten  years.  Code  Tenn.  (M.  &  V.),  §  1572  (1348);  [Shan- 
non's code  Tenn.,  §  1867]. 

The  land  of  persons  under  disability  may  be  taken  like  that  of  other 
people.  3  Head,  63.  The  statute  of  limitation  above  is  not  unconstitu- 
tional. 12  Heis.,  623-24.  Party  seeking  to  condemn  entitled  to  open 
and  close  case.  4  Pick.,  528.  Abutting  landowner  without  fee  in  street 
entitled  to  no  pay,  when.  3  Pick.,  528-22-29.  Deed  to  street  goes  to 
center,  but  to  side  of  street,  no  further.  3  Pick.,  522,  626-34.  Horse 


774  EMINENT    DOMAIN. 

street  railways  in  streets  no  additional  burden.  3  Pick.,  633;  4  Pick., 
750.  But  steam  railways,  dummies,  etc.,  are.  3  Pick.,  632-33;  4  Pick., 
750.  747;  6  Pick.,  239.  Commissioners  may  be  appointed  whether  parties 
have  made  an  unsuccessful  effort  to  agree  or  not.  2  Head.  624-26. 

Right  Of  way  for  geodetic  Survey.— Any  person  employed 
under  an  act  of  Congress  of  the  United  States  passed  the  tenth 
day  of  February,  one  thousand  eight  hundred  and  seven,  and  of 
the  supplements  thereto,  or  under  the  direction  of  Congress  to 
form  a  geodetic  connection  between  the  Atlantic  and  Pacific 
coasts,  and  to  furnish  triangulation  points  for  state  surveys,  may 
enter  upon  lands  within  this  state  for  the  purpose  of  exploring, 
triangulating,  leveling,  surveying,  and  of  doing  any  other  act 
which  may  be  necessary  to  carry  out  the  objects  of  said  laws, 
and  may  erect  any  works,  stations,  buildings,  and  appendages 
requisite  for  that  purpose,  doing  no  unnecessary  injury  thereby. 
Code  Tenn.  (M.  &  V.),  §1573;  acts  1877,  ch.  24,  sec.  1; 
[Shannon's  code  Tenn.,  §  1877]. 

Damages. — If  the  person  over  whose  lands  the  survey  has 
been  made,  or  upon  whose  lands  monuments,  stations  or  build- 
ings have  been  erected,  or  who  has  in  any  way  sustained 
damage  by  such  survey,  cannot  agree  with  the  officer  of  the 
coast  survey  as  to  the  damage  sustained,  the  amount  of  such 
damage  may  be  ascertained  in  the  manner  provided  hereinbe- 
fore for  the  taking  of  private  property  for  public  uses.  Code 
Tenn.  (M.  &  V.),  §  1574;  acts  1877,  ch.  24,  sec.  2;  [Shan- 
non's code  (Tenn.),  §  1878.] 

ALABAMA  ACTS  AS  TO  EMINENT   DOMAIN. 

Nature  of  railway's  holding  of  right  of  way.— [in  Ala 

bama.]  By  acts  Ala.  1849-50,  No.  123,  1890-91,  p.  154, 
1888-89,  p.  443,  and  1859-60,  No.  216,  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  was  authorized  to  build  through 
Jackson,  Madison,  Marshall,  and  Etowah  counties,  with  all 
the  rights  of  Tennessee  charter.  See  acts  themselves  herein 

D 

on  p.  55  to  61. 

1.   Under  the  state  constitution  of  Alabama,   1875,  it  is  provided  that 
"  no  railroad,  caual,  or  other  transportation  company,  in  existence  at  the 


GENERAL    POWERS   OF   THE    N. ,    C.    A   ST.    L.    RV.  775 

time  of  the  ratification  of  this  constitution,  shall  have  the  benefit  of  any 
future  legislation  by  general  or  special  laws,  other  than  in  execution  of 
a  trust  created  by  law,  or  by  contract,  except  on  the  condition  of  complete 
acceptance  of  all  the  provisions  of  article  14  of  said  constitution.  Code, 
Ala.,  1896,  p.  103. 

Same.  Easement  acquired. — A  roadbed  and  right  of  way 
cleared  and  in  use  is  in  a  different  category  from  ordinary  ease- 
ments. It  is  exclusive,  and  unlike  other  easements  will  support 
ejectment.  It  is  in  the  nature  of  realty.  75  Ala.,  516. 
Ejectment  will  not  lie,  however,  if  road  merely  surveyed  and 
located  twenty-five  years  ago.  75  Ala.,  516.  The  railroad 
company  only  acquires  an  easement  in  the  land.  The  fee 
buildings,  and  everything  not  necessary  to  its  use  as  a  right  of 
way,  remains  with  the  owner.  04  Ala.,  488. 

Same.    Trespassers  may  be  ejected  from  right  of  way.— 

The  railroad,  roadbed,  and  track  are  private  pro|>erty,  along 
which  no  one  has  the  right  to  travel  except  by  permission  of 
the  owner.  A  person  on  the  track  not  at  a  public  crossing, 
may,  on  refusing  to  get  on*  after  warning,  be  removed  by  all 
the  means  the  owner  of  a  freehold  can  employ  to  eject  an  in- 
truder. 62  Ala.,  305. 

Width  of  right  of  way  in  absence  of  condemnation.— If 

land  is  deeded  to  a  railway  company  for  a  right  of  way  and  no 
mention  is  made  therein  as  to  its  width  the  law  presumes  the 
statutory  width  was  intended.  98  Ala.,  647.  See  also  3  Lea 
(Tenn.),  478.  If  no  deed  or  condemnation,  then  the  entry 
and  construction  of  the  road  would  doubtless  be  considered  as 
an  appropriation  of  the  statutory  width.  See  3  Lea  (Tenn.), 
478. 

Adverse  possession  Of  right  Of  way.— Where  a  railroad 
company  locates  its  right  of  way  over  a  strip  of  land,  and, 
entering  thereon,  throws  up  embankments,  prepares  its  road- 
bed through  the  entire  tract,  and  exercises  acts  of  ownership 
over  .it,  it  must  be  considered  as  acquiring  thereby  adverse 
possession  of  the  strip  for  railroad  purposes.  109  Ala.,  377. 

As  to  what  constitutes  abandonment  of  right  of  way,  see  109 
Ala.,  448. 


776  EMINENT    DOMAIN. 

Power  to  acquire  property  does  not  authorize  purchase  of 
competing  steamship  line.— 58  Ala.,  241. 
Successive  appropriation  for  right  of  way.— The  right  of 

successive  appropriation  for  right  of  way  is  recognized  in  Ala- 
bama. 87  Ala.,  501.  See  also  discussion  of  similar  heading 
on  Tennessee  law  herein,  on  p.  745  et  seq.  of  this  chapter. 

May  condemn  for  branch  roads,  when.— See  pp.  639  and 

640  herein. 

Right  of  other  roads  to  condemn  right  of  way,  depot  facil- 
ities, yards,  etc.,  of  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way.—in  Alabama  railroads  chartered  under  the  general  laws 
may  condemn  right  of  way  of  other  roads,  but  not  their  road- 
bed. 82  Ala.,  297;  87  Ala.,  501-20.  See  also  discussion  of 
similar  heading  under  Tennessee  law  in  this  chapter,  p.  756 
herein. 

May  condemn  intersection,  connection,  and  crossing  of 

Other  railroads. — See  section  21,  of  article  XIV.,  of  Alabama 
state  constitution,  p.  102  of  code  Ala.  1896.  See  also  "  Cross- 
ings" herein,  on  pp.  710-714.  See  also  §§1165,  2445,  code 
Ala.,  1896. 

Cities  may  authorize  railroads  to  build  tracks  across  or 

through  streets  and  alleys.      116  Ala.,  51. 

Railroads  of  Alabama  are  public  highways.— See  §  3459, 

code  Ala.  1896. 

Forfeiture  of  franchise  by  nonuser.— Railroad  corporations 

organized  under  chapter  28,  of  article  VI.,  of  the  code  of  Ala- 
bama, 1896,  forfeit  their  franchises  and  cease  to  exist  by  non- 
user  of  their  franchises  for  five  consecutive  years. 

Right  of  telegraph  companies  to  erect  lines  along  railroad 

right  Of  way. — It  is  provided  by  the  laws  of  Alabama  that 
"any  telegraph  company,  incorporated  under  the  laws  of  this 
or  any  other  state,  shall  have  the  right  to  construct,  maintain, 
and  operate  lines  of  telegraph  along  any  of  the  railroads  or 
other  public  highways  in  .this  state;  but  such  lines  of  telegraph 
shall  be  so  constructed  and  maintained  as  not  to  obstruct  or 
hinder  the  usual  travel  on  such  railroad  or  other  highway." 
Code  Ala.  1896,  §  1244. 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     777 


HOW  LAND  CONDEMNED  IN  ALABAMA. 
Application  to  court  of  probate  for  order  of  condemnation. 

— Any  corjx)ration  organized  under  the  laws  of  this  state,  or 
any  person,  or  association  of  persons,  proposing  to  take  lands, 
or  to  acquire  an  interest,  or  easement  therein,  for  any  uses  for 
which  private  property  may  be  taken,  may,  if  there  be  no 
other  mode  of  proceeding  prescribed  by  law,  apply  to  the  court 
of  probate  of  the  county  in  which  such  lands,  or  a  material 
portion  thereof,  may  be  situate,  for  an  order  of  condemnation 
thereof  to  such  uses.  Code  Ala.,  1896,  §  1712. 

1.  The  question  of  the  power  of  an  applicant  to  condemn  is  one  of  law, 
and  for  the  court.  London  v.  Sample  LumJter  Co.,  91  Ala.,  606.  Probate 
court  has  jurisdiction  of  an  application  made  by  a  railroad  organized 
under  the  general  law,  to  condemn  for  right  of  way  a  part  of  the  right 
of  way  of  another  road,  but  not  of  the  road-bed.  A.  A  C.  R.  Co.  v.  J.  A 
A.  R.  Co.,  82  Ala.,  297;  M.  &  O.  R.  Co.  v  A.  If.  Ry.  Co.,  87  Ala.,  501;  M.  A 
O.  R.  Co.  v.  A.  M.  Ry.  Co.,  87  Ala..  520.  But  not  of  a  like  application  by 
a  street  railway  without  special  statutory  authority.  L.  &  N.  R.  Co.  v. 
People's  S.  R.  A  L  Co.,  J01  Ala.,  331.  A  railroad  is  not  bound  to  adhere 
to  a  condemned  right  of  way,  but  may  proceed  to  further  condemnation. 
Cooper  v.  A.  A  A.  R.  Co.,  85  Ala.,  106.  On  appeal,  the  application  may  be 
amended  in  the  circuit  court  so  as  to  include  more  land  than  originally 
asked.  Newton  v.  A.  M.  Ry.  Co.,  99  Ala.,  468.  A  corporation  entering  on 
lands  without  the  consent  of  the  owner,  and  without  proceedings  for 
condemnation,  is  a  trespasser.  N.  0.  AS.  R.  Co.  v.  Jones,  68  Ala..  48;  8  c., 
70  Ala.,  227.  Having  acquired  possession  by  trespass,  and  improved  the 
property,  the  corporation  may  still  institute  proceedings  for  its  condem- 
nation. Jones  v.  N.  O.  A  S.  R.  Co.,  70  Ala.  227. 

2.  Right  to  condemn  on  purchased  road. — The  N.,  C.  «fe  St.  L.  Ry. 
has  purchased  several  roads  in  Alabama,  together  with  their  rights, 
powers,  privileges,  and  franchises.  In  such  cases,  the  power  of  the  N. , 
C.  &  St.  L.  Ry.  to  condemn  on  the  line  of  such  roads  would  depend  also 
upon  the  law  of  its  organization.  In  other  words,  as  to  the  line  of  such 
roads,  the  N.,  C.  &  St.  L.  Ry.  would  be  vested  with  all  the  powers  and 
privileges,  and  subject  to  all  the  duties  and  liabilities,  of  said  original 
company.  If  the  road  so  purchased  had  any  particular  rights  in  this  re- 
gard, then  the  N.,  C.  &  St.  L.  Ry.  would  also  possess  them  on  this  line. 
15  Lea  (Tenn.),  37;  112  U.  S.,  610;  see  also,  case  of  Royer*  v.  .V.,  C.  A  St. 
L.  Ry.,  decided,  November  9,  1898,  by  the  United  States  circuit  court  of 
appeals,  sitting  at  Cincinnati,  but  which  case  has  not  yet  been  reported. 
The  charter  would  not  control  absolutely,  for,  though  a  statute  pre- 
scribes a  mode  by  which  land  may  be  condemned,  if  thereafter  the  leg- 
islature, by  general  act,  prescribes  a  different  mode,  the  company  must 


778  EMINENT    DOMAIN. 

proceed  in  the  mode  prescribed  by  the  latter  act.  Such  a  statute  does 
not  impair  vested  rights,  but  merely  affects  remedies.  Thompson  on 
Corp.,  sec.  5407;  81  Ky.,  221;  12  Heis.  (Tenn.),  54;  85  Ky.,  270;  47  N.  J. 
L.,  59;  54  Am.  Rep.,  114;  Thompson  on  Corp.,  sec.  5437. 

Application  and  Contents. — The  application  must  be  in  writ- 
ing, verified  by  the  oath  of  the  applicant,  or  by  the  oath  of  an 
agent  or  attorney,  and  accompanied  with  security  for  the  costs, 
and  must  state  with  certainty  the  name  and  residence  of  the 
applicant,  the  uses  or  purposes  for  which  the  land  is  to  be 
taken,  or  the  interest  or  easement  therein  to  be  acquired,  and 
must  state  the  name  and  residence  of  the  owner,  if  known,  or, 
if  unknown,  must  show  that  reasonable  diligence  has  been  used 
to  ascertain  the  same.  Code  Ala.,  1896,  §  1713. 

The  application  must  describe  the  lands  sought  to  be  taken  with  suffi- 
cient precibion  to  enable  a  skillful  person  to  locate  it.  Brown  v.  R.  &  D. 
R.  Co.,  86  Ala.,  206;  London  v.  Sample  Lumber  Co..  91  Ala.,  606.  Applica- 
tion may  be  amended  on  appeal  to  the  circuit  court  so  as  to  include  more 
land.  Newton  v.  A.  M.  Ry.  Co.,  99  Ala.,  468.  A  second  application  may 
be  filed  to  condemn  another  right  of  way,  although  one  has  already  been 
awarded  applicant.  Cooper  v.  A.  &  A.  R.  Co.,  85  Ala.,  106.  If  payment 
be  not  made  of  the  assessed  damages  within  six  months,  applicant  may 
file  a  second  application  to  condemn  the  same  lands.  A.  M.  Ry.  Co.  v. 
Neivton,  94  Ala.,  443. 

Order  of  court  on  filing  applications ;  notice.— On  the  filing 

of  the  application  the  court  must  make  and  enter  an  order  ap- 
pointing a  day  for  the  hearing  thereof,  and  if  the  owner  of  the 
lands  resides  in  the  state,  must  issue  to  him  notice  of  the  appli- 
cation, and  of  the  day  for  the  hearing  thereof,  which  must  be 
served  by  the  sheriff,  or  other  legal  officer,  at  least  ten  days 
before  the  day  appointed  for  the  hearing;  if  the  owner  be  un- 
known, or  if  he  resides  without  the  state,  notice  must  be  given 
by  advertisement  in  some  newspaper  published  in  the  county, 
or  if  there  be  no  newspaper  published  in  the  county,  by  post- 
ing notice  at  the  courthouse  door,  and  three  other  public  places, 
for  at  least  three  weeks  before  the  day  appointed  for  the  bear- 
ing. If  the  owner  be  an  infant,  or  be  of  unsound  mind,  notice 
must  be  served  on  his  guardian,  if  any  he  have,  resident  in  the 
state;  but  if  he  resides  in  the  state,  and  has  no  such  guardian, 
then  upon  the  person  who  may  have  him  in  charge,  or  with 


GENERAL    POWERS    OF   THE    N.,    C.    A    ST.    L.    RY.  779 

whom  he  may  reside;  if  the  owner   l>e  dead,  and  the  lands  are 
in  the  possession  or  under  the  control  of  his  j>ersonal  represent- 
ative, notice  must  be  served  on  such  representative,   and  on  the 
heirs  at  law  of  the  decedent.     Code  Ala.,  1896,   g  1714. 
Married  women  clause  stricken  out  by  joint  committee. 

Infants ;  persons  of  unsound  mind.— if  the  owner  of  the 

lands  he  an  infant,  or  is  of  unsound  mind,  the  court,  on  the  day 
appointed  for  the  hearing,  must  appoint  a  guardian  ad  I  item  to 
represent  him,  and  the  guardian  so  appointed  must  tile  a  writ- 
ten acceptance  of  the  appointment,  must  appear  and  protect 
the  rights  and  interests  of  such  infant,  or  person  of  unsound 
mind;  and,  if  he  deems  it  necessary,  may  employ  counsel  to 
assist  him;  the  compensation  of  such  guardian  and  of  his  coun- 
sel must  be  ascertained  by  the  court  and  taxed  as  costs  of  the 
proceeding.  Code  Ala.,  1896;  §1715. 

Damages  should  not  be  paid  over  to  the  guardian  ad  Utem.  Broitm  v. 
B.  A  D.  R.  Co.,  86  Ala.,  206. 

Owner  not  appearing. — If  the  owner  does  not  appear  on  the 
hearing  of  the  application,  the  court  must  hear  the  same,  and 
if  the  application  be  granted,  must  appoint  commissioners  as 
herein  provided  for,  and  thereafter  the  same  proceedings  shall 
be  had  as  if  such  owner  had  appeared.  Code  Ala.,  1896; 
§1716. 

Allegations,  objections  and  proof  to  be  heard ;  appeal.— On 

the  day  appointed,  or  any  other  day  to  which  the  hearing  may 
be  continued,  the  court  must  hear  the  allegations  of  the  appli- 
cation, and  any  objections  which  may  be  tiled  to  the  granting 
thereof,  and  any  legal  evidence  touching  the  same,  and  shall 
make  an  order  granting  or  refusing  the  application.  The  hear- 
ing herein  provided  for  must  in  all  respects  be  conducted 
and  evidence  taken  as  in  civil  cases  at  law,  and  either  party 
may,  by  bill  of  exception,  reserve  any  opinion  or  decision  of 
the  court  as  in  cases  in  which  bills  of  exception  are  allowed  in 
civil  cases  at  law;  and  either  party  is  entitled  to  an  appeal  to 
the  supremo  court  from  the  order  of  the  court  granting  or  re- 
fusing the  application  within  thirty  days  from  the  making 
thereof.  Code  Ala.,  1896;  §  1717. 

See  citations  to  section  1720. 


780  EMINENT    DOMAIN. 

• 

If  application  granted ;  commissioners  appointed ;  damages 

assessed. — If  the  application  be  granted,  the  judge  of  probate 
must  appoint  three  citizens  of  the  county  in  which  the  lands 
sought  to  be  condemned  are  situated,  who  shall  possess  the 
qualifications  of  jurors,  who  shall  be  disinterested,  and  who 
shall  be  required  to  file  a  certificate  along  with  their  ward  that 
neither  of  them  have  ever  been  consulted,  advised  with  or  ap- 
proached by  any  person  in  reference  to  the  value  of  the  lands, 
or  the  proceedings  to  condemn  the  same,  prior  to  the  assess- 
ment of  damages,  and  that  they  knew  nothing  of  the  same  be- 
fore their  appointment ;  and  the  judge  of  probate  is  authorized 
to  fill  any  vacancy  occasioned  by  death,  resignation,  failure  to 
act,  or  any  disqualification  of  any  of  such  commissioners  from 
interest,  prior  knowledge  of  the  subject-matter,  or  by  being 
consulted,  advised  with  or  approached  in  reference  to  the  con- 
demnation of  such  lands  prior  to  appointment,  or  to  the  assess- 
ment of  damages.  When  the  court  shall  have  appointed  the 
commissioners  as  herein  provided,  it  shall  at  once  issue  notice 
of  such  appointment  to  the  sheriff,  whose  duty  it  shall  be  to 
serve  such  notice  upon  the  person  therein  designated  within  five 
days  of  the  receipt  thereof,  and  the  sheriff  shall  receive  the 
same  compensation  for  serving  such  notice  as  allowed  for  sum- 
moning jurors.  It  shall  be  the  duty  of  the  commissioners,  or 
a  majority  of  them  thus  appointed  by  the  judge  of  probate,  to 
assess  the  damages  and  compensation  to  which  the  owner  of  the 
lands  is  entitled,  and  they  shall  be  sworn  as  jurors  are  sworn. 
The  commissioners  may  view  the  lands  to  be  subjected,  and 
must  receive  all  legal  evidence  that  may  be  offered  by  either 
party  touching  the  amount  of  the  damages  the  owner  of  the 
lands  will  sustain  and  the  amount  of  compensation  he  is  entitled 
to  receive  ;  but  the  amount  of  compensation  to  which  the  owner 
is  entitled  must  not  be  reduced  or  diminished  because  of  any 
incidental  benefits  which  may  accrue  to  him,  or  to  his  remain- 
ing lands  in  consequence  of  the  uses  to  which  the  land  proposed 
to  be  taken,  or  in  which  an  easement  is  proposed  to  be  acquired, 
will  be  appropriated.  But  nothing  in  this  section  shall  be  con- 
strued to  prevent  any  applicant  for  the  condemnation  of  land. 


GENKHAI.    I'OUKK-    OF    THE    X.,    C.    A   ST.    L.    KY.  7M 

I 

<>r  any  landowner  whose  land  is  sought  to  be  condemned,  from 
Ix'inir  present  in  person,  or  by  attorney,  at  any  of  the  proceed- 
ings or  trials  provided  for  in  this  article.  Code  Ala.  1896, 

.:  1718. 

Commissioners  are  regarded  as  an  inferior  statutory  tribunal.  .V.  8. 
Ry.  Co.  v.  Say  re,  72  Ala.,  443.  The  owner  of  attingcnt  property  injured 
by  the  construction  of  a  railroad  embankment  on  its  right  of  way  is  en- 
titled to  damages,  but  this  right  does  not  pass  to  the  vendee.  Evann  v. 
S.  A  M'.  Ry.  Co.,  90  Ala.,  54.  The  measure  of  damages  is  the  value  of 
the  land  ut  the  time  of  the  actual  taking,  and  the  diminution  in  value  of 
contiguous  lands.  Hooper  v.  S.  A  M.  R.  Co.,  69  Ala.,  529;  Jones  v.  X.  O. 
A  S  R.  Co,,  70  Ala.,  227.  And  this  when  the  land  was  taken  by  a  tres- 
passer who  had  erected  valuable  improvements.  N.  O.  &  S.  R.  Co.  v. 
Jones,  68  Ala.,  48;  B.C.,  70  Ala.,  227.  The  value  at  which  the  owner  as- 
sesses the  land  for  taxation  is  admissible  as  evidence  of  value,  but  is  not 
conclusive.  Blrmlinjluim  Mln.  R.  Co.  v.  Smith,  89  Ala.,  305.  See  also 
citations  to  constitution,  article  14,  sec.  7. 

Report  Of  the  commissioners. — The  commissioners  must, 
within  ten  days  from  their  appointment,  report  in  writing  to 
the  court  the  amount  of  the  damages  and  compensation  ascer- 
tained and  assessed  by  them,  and,  thereupon,  the  court  must 
order  the  same  to  be  recorded,  and  must  make  an  order  of  con- 
demnation in  pursuance  thereof  upon  payment  of  the  damages 
and  compensation  so  assessed  and  reported,  or  the  deposit  of 
the  same  in  court.  Code  Ala.  1896,  sec.  1719. 

1.  The  words  "or  the  deposit"  inserted  by  joint  committee. 

2.  Irregular,  unauthorized,  and  void  order.     91  Ala.,  606. 

Appeal  from  assessment  of  damages.— Either  party  may 

appeal  from  the  assessment  of  damages  and  compensation  by 
the  commissioners  to  the  city  or  circuit  court  of  the  county 
within  thirty  days  after  the  making  of  the  order  of  condemnation 
upon  the  report  of  the  commissioners,  by  tiling  in  the  court 
rendering  the  judgment  a  written  -notice  of  appeal,  a  copy  of 
which  shall  be  served  on  the  opposite  party,  and  on  such 
appeal  the  trial  shall  be  •/•  novo;  but  no  appeal  shall  suspend 
the  judgment  if  the  applicant  shall  give  bond,  with  good  and 
sufficient  surety,  to  be  approved  by  the  judge  of  probate,  to 
pay  such  judgment  as  shall  be  rendered  on  appeal.  Code  Ala. 
1896,  §  1720. 

An  appeal  and  trial  by  jury  of  twelve  must  be  secured;  appeal  under 


782  EMINENT    DOMAIN. 

this  section  must  be  taken  from  probate  to  city  or  circuit  court.  Mont- 
gomery S.  Ry.  v.  Sayre,  72  Ala..  443;  Woodard  I.  Co.  v.  CaJtxinlss,  87  Ala., 
328;  Postal  T.  C.  Co.  v.  A.  G.  S.  R.  Co.,  92  Ala.,  331;  A.  M.  Ry.  Co.  v.  New- 
ton, 94  Ala.,  443;  M.  &  C.  R.  Co.  v.  B.  S.  &  T.  R.  Ry.  Co.,  96  Ala.,  571; 
L.  &  N.  R.  Co.  v.  Peoples'  S.  Ry.  &  I.  Co.,  101  Ala.,  331;  M.  &  C.  R.  Co.  v. 
Hopkins,  108  Ala.,  159.  See  also  citations  to  constitution,  article  14, 
sec.  7. 

Order  of  condemnation;  effect  of  appeal.— The  order  of 

condemnation  upon  the  payment  of  the  sum  ascertained  and 
assessed  by  the  verdict  of  the  jury,  or  the  deposit  thereof  in 
court  for  the  defendant,  shall  vest  in  the  applicant  the  ease- 
ment proposed  to  be  acquired  for  the  uses  and  purposes  stated 
in  the  application,  and  for  no  other  uses  or  purposes.  But,  if 
an  appeal  shall  be  taken  by  either  party,  then  the  person,  cor- 
poration, or  association  seeking  to  acquire  such  right  of  way, 
upon  the  deposit  in  the  court,  for  the  party  whose  land  is 
sought  to  be  condemned,  of  the  amount  of  damages  and  com- 
pensation so  assessed,  together  with  the  costs  of  the  proceed- 
ing, shall  be  entitled  to  enter  upon  the  land  so  condemned,  and 
survey,  construct,  and  operate  on  the  same  for  the  uses  and 
purposes  stated  in  the  application;  but  such  easement  shall  not 
vest  absolutely  in  such  person,  corporation,  or  association  until 
the  tinal  determination  of  the  cause  and  the  payment  or  deposit 
in  court  of  such  damages  and  compensation  as  shall  then  be 
adjudged.  Code  Ala.  1896,  §  1721. 

In  the  order  of  condemnation  the  same  certainty  of  description  is 
required  as  in  the  conveyance.  London  v.  Sample  Lumber  Co.,  91  Ala., 
606.  The  payment  of  compensation  before  the  taking  is  complete  is  a 
condition  precedent,  without  which  the  title  of  the  owner  is  not  dis- 
turbed. N.  O.  &  S.  R.  Co.  v.  Jones,  68  Ala.,  48,  8  c.  70  Ala..  227;  M.  &  S. 
Ry.  Co.  v.  Say  re,  72  Ala.,  443;  Faust  v.  Mayor,  83  Ala.,  279;  A.  M.  Ry.  Co. 
v.  Newton,  94  Ala.,  443.  Until  payment  is  made,  the  applicant  has  the 
right  to  discontinue  proceedings-.  A.  M.  Ry.  Co.  v.  Xewton,  94  Ala..  443. 
The  applicant  only  acquires  an  easement  in  the  lands;  the  fee,  buildings, 
and  everything  not  necessary  to  its  use  as  a  right  of  way  remains  with 
the  owner.  Odum  v.  R.  &  J.  R.  Co..  94  Ala.,  483.  If  the  required  deposit 
is  made,  an  appeal  in  no  wise  hinders  or  impedes  work  on  the  premises. 
Cooper  v.  A.  &  A.  R.  Co..  85  Ala.,  106;  M.  &  O.  R.  Co.  v.  A.  M.  Ry.  Co.,  87 
Ala.,  520.  See  also  citations  to  constitution,  art.  I.,  sec.  24;  art.  XIV., 
sec.  7. 

Time  within  which  damages  to  be  paid ;  effect  of  failure  to 

pay. — The  applicant  may  pay  the  damages  and  compensation 


GENERAL    POWERS   OF   THE    N.,    C.    &    8T.    L.     RY. 

assessed  at  any  time  within  six  months  after  the  assessment 
thereof,  or,  in  case  an  appeal  is  taken,  within  six  months  after 
the  appeal  is  determined;  but  if  he  fails  to  pay  the  same  within 
such  time,  such  assessment  shall  cease  to  be  binding  on  the 
owner  of  the  lands,  and  the  rights  of  the  applicant  thereunder 
shall  determine;  and  upon  such  failure,  the  applicant  shall  be 
liable  to  the  owner  for  all  damages  the  latter  may  have  sus- 
tained by  the  institution  of  such  proceedings,  including  a  rea- 
sonable attorney's  fee  for  defending  the  same.  Code  Ala.  1896, 
1722. 


A  judgment  of  condemnation  cannot  be  pleaded  as  res 
until  paid;  extent  of  conclusiveness  before  payment.  .Am.  R\I.  Co.  v. 
Newton,  94  Ala.,  443.  Methods  of  enforcing  payments  of  damages  and 
compensation.  Cooper  v.  A.  &  A.  R.  Co.,  85  Ala.,  106.  Compensation  and 
damages  should  not  be  paid  to  the  guardian  ad  litem  of  an  infant. 
Brown  v.  R.  AD.  R.  Co.,  86  Ala.,  206.  See  also  citations  to  preceding 
section. 

Foreign  telegraph  and  telephone  company.  —  A  telegraph  or 

telephone  company,  incorporated  under  the  laws  of  another 
state,  proposing  to  extend  connecting  lines  into  this  state,  may 
acquire  an  easement  for  the  uses  and  purposes  of  such  connect- 
ing lines,  and  may  pursue  the  mode  of  proceedings  prescribed 
in  this  article.  Code  Ala.  1896,  §1723. 

Railroad  Crossings.  —  Any  corporation,  person,  or  association 
of  persons  owning  a  railroad  or  st'reet  railroad  in  this  state,  and 
proposing  to  cross  or  intersect  the  line  of  another  railroad  or 
street  railroad,  may  acquire  an  easement  for  such  purpose,  and 
to  that  end  may  pursue  the  mode  of  proceeding  prescril>ed  in 
this  article.  Code  Ala.  1896,  §  172-L 

The  crossing  is  a  taking,  and  compensation  must  be  made,  as  in  other 
CTHCin  M.  A  V.  R.  Co.  v.  B.  S.  A-  T.  Ry.  Co.,  96  Ala.,  571.  See  citations  to 
sec.  I7r.'.  and  to  constitution,  art.  14,  sec.  31. 

Costs.  —  The  cost  of  the  application  and  proceedings  thereun- 
der, including  the  compensation  of  commissioners,  who  shall 
receive  the  pay  of  jurors,  must  be  adjudged  against  the  appli- 
cant and  his  surety  for  costs,  for  which  execution  may  be 
issued.  But  should  the  applicant  tender  to  the  landowner, 
prior  to  the  application  for  condemnation,  a  sum  of  money  in 


784  EMINENT    DOMAIN. 

excess  of  the  award  of  the  commissioners,  then  the  costs  of  the 
proceedings  before  the  commissioners  shall  be  against  the  land- 
owner; bat  the  commissioners  shall  have  no  knowledge  of  the 
amount  so  tendered,  and  must  certify  in  their  award  that  they 
had  no  knowledge  of  such  tender.  The  principles  of  law  and 
rules  of  justice  relative  to  tender  shall  apply  to  all  tenders 
made  under  the  provisions  of  this  section.  Code  Ala.,  1896; 
§  1725. 

Court  of  probate  open  at  all  times.— The  court  of  probate 

must  be  deemed  always  open  for  the  tiling  and  trial  of  all  ap- 
plications made  under  this  article.  Code  Ala.,  1896;  §  1726. 

GEORGIA  ACTS  AS  TO  EMINENT  DOMAIN. 

Nature  of  railways  holding  of  right  of  way.— [in  Georgia.] 

By  acts  Ga.,  1847-8,  p.  172,  the  Nashville,  Chattanooga  & 
St.  Louis  Railway  was  granted  all  the  rights,  privileges,  and 
immunities  in  Dade  County,  Georgia,  as  it  possessed  under  its 
Tennessee  charter,  and  also  rights  of  Hiawassee  Railroad  Co. 
See  p.  62,  herein. 

The  dominion  of  a  railroad  corporation  over  its  tracks,  trains, 
and  right  of  way  is  no  less  complete  or  exclusive  than  that 
which  every  owner  has  over  his  own  property.  Hence  the  cor- 
poration may  exclude  or  admit  whom  it  pleases  when  they 
come  to  transact  their  own  private  business  with  passengers  or 
other  persons.  This  applies  to  selling  lunches  to  or  soliciting 
orders  from  passengers,  and  a  mere  implied  license,  no  matter 
how  long  enjoyed,  to  transact  such  business,  for  which  no  com- 
pensation has  been  paid,  is  revocable  at  any  time.  81  Ga., 
461.  See,  also,  similar  heading  under  Tennessee  law,  in  this 
chapter,  p.  742,  herein. 

Same.    Easement  only  acquired.— By  §^4683  of  the  Code 

Georgia,  1895,  which  is  set  out  further  on  in  this  chapter,  the 
interest  acquired  by  the  railroad  company  in  its  condemned 
rio"ht  of  way  is  only  an  easement. 

Same.   Injunction  will  lie  to  prevent  others  from  building  on 

right  of  Way. — It  has  been  held  in  Georgia  that  where  a 
railroad  company  acquires  a  right  of  way,  an  injunction 


GENERAL    POWERS   OF    THE    N.,    G.    A    ST.    L.    RV. 

ry^Zj, 

would  lie  •toljpreveiit  an  adjoining  landowner  from  erecting  a 
flouring  mill  within  seven  or  eight  feet  of  the  track,  which 
would  thus  leave  no  sufficient  room  for  the  repair  and  construc- 
tion of  the  same.  27  Ga.,  409. 

Statute  of  limitations  runs  against  right  of  way ;  when.- 

It  has  been  held  in  Georgia  that  "although  the  charter  of  a 
railroad  company  authorized  it  to  acquire  such  strips  of  land 
between  its  terminal  points  as  it  might  deem  necessary,  the 
width  of  the  right  of  way  not  l>eing  stated,  yet  when  the  road 
was  located  along  and  near  the  land  now  in  dispute,  and  for 
thirty  years  the  company  did  not  take  or  use  it,  but  it  remained 
in  the  possession  of  others  who  claimed  title  to  it,  this  was 
conclusive  that  it  was  not  deemed  necessary  by  the  company  for 
the  successful  operation  of  the  road,  and  was  not,  therefore,  a 
part  of  its  right  of  way  under  its  charter,  no  conveyance  to 
the  company  or  condemnation  of  the  land  appearing. "  76 
Ga.,  749. 

1.  If  the  width  of  right  of  way  is  specified  in  the  charter,  it  is  prob- 
able that  the  entry  and  construction  of  the  road  would  be  regarded  as 
an  appropriation  of    the  statutory  width.     See  3  Lea  (Tenn.),  478;  98 
Ala.,  647. 

2.  See  discussion  in  first  part  of  this  chapter  on  similar  heading  under 
Tennessee  law,  p.  739,  et  H&I.,  herein. 

Misuser  of  franchises  may  work  dissolution.     100  Ga.,  147. 

Right  of  cities  to  open  streets  across  railroad  tracks; 

depot  grounds,  etc. — In  order  to  authorize  a  municipal  corpora- 
tion in  Georgia  to  take  for  the  purpose  of  opening  or  extend- 
ing streets,  property  already  devoted  to  public  use,  the  power 
must  be  conferred  in  express  terms,  or  by  necessary  implica- 
tion. A  general  power  conferred  by  legislative  enactment  "to 
open  new  streets,  change,  widen,  or  to  extend  streets  already 
opened  within  the  corporate  liinite,"  does  not  expressly,  or  by 
implication,  confer  upon  the  city  the  authority  to  take  and  use 
for  this  purpose  land  already  in  use  by  a  railroad  company  for 
purposes  embraced  within  the  provisions  of  its  charter.  98 
Ga.,  161. 

Where  street  opened  across  track,  railroad  not  prevented 
from  laying  additional  tracks  at  crossing.— It  has  been  de- 
cided in  Georgia  that,  "  where  the  dedication  of  so  much  of  a 

50 


786  EMINENT    DOMAIN. 

public  street  as  crosses  an  existing  track  and  the  right  of  way 
of  a  railroad  company,  has  resulted  by  implication  from  the 
laying  out  of  the  street  at  that  point  by  the  municipal  authori- 
ties, and  its  use  by  the  public  acquiesced  in  by  the  railroad  com- 
pany, the  company  is  not  thereby  precluded  from  constructing 
and  using  for  the  passage  of  its  locomotives  and  cars,  when 
essential  to  the  convenient  transaction  of  its  business,  an  addi- 
tional track  upon  such  street,  within  the  limits  of  the  right  of 
way  owned  by  it  at  the  time  of  the  dedication,  if  the  track  is 
so  constructed  and  used  as  not  to  interfere  more  with  the  use 
of  the  street  by  the  public  than  is  ordinary  and  usual  at  street 
and  railway  intersections  where  the  whole  breadth  of  the  right 
of  way  is  occupied  with  tracks  for  the  passage  of  locomotives 
and  cars.  91  Ga.,  573. 

Successive  appropriation  or  condemnation,  for  right  of 

way. — For  a  discussion  generally  of  this  subject,  see  similar 
heading  under  Tennessee  law,  p.  745  herein. 

May  condemn  connecting  switches  with  other  roads,  and 

Vice  versa.— See  §2215  of  code  Ga.  1895;  also  §  2167(6)  of 
same  code. 

May  condemn  land  for  branch  roads.— See  p.  640  et  seq. 

herein. 

Right  of  other  roads  to  condemn  right  of  way  of  this.— 

"In  the  event  any  company  does  not  procure  from  the  owner 
or  owners  thereof,  by  contract,  lease,  or  purchase,  the  title  to 
the  lands  or  right  of  way  or  other  property  necessary  or 
proper  for  the  construction  or  connection  of  said  railroad  and 
its  branches  or  extensions,  or  its  depots,  wharves,  docks,  or 
other  necessary  terminal  facilities,  necessary  or  proper  for  it 
to  reach  its  freight  or  passenger  depot  in  any  city,  town,  or 
village  in  the  state,  as  hereinafter  provided,  said  corporation 
may  construct  its  railroad  over  any  lands  belonging  to  other 
persons,  or  over  such  right  of  way  or  tracks  of  other  railroads, 
as  aforesaid,  upon  paying  or  tendering  to  the  owner  thereof,  or 
to  his  or  her  or  its  legally  authorized  representative,  just  and 
reasonable  compensation  for  said  lands  or  said  right  of  way. 
When  the  compensation  is  not  otherwise  agreed  upon,  it  shall 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RY.  787 

be  assessed  and  determined  in  the  manner  provided  in  this 
code."  Code  Ga.  1895,  §2170.  See  also  discussion  herein 
of  Tennessee  law  on  subject,  p.  756. 

Same.  Right  of  other  roads  to  condemn  joint  use  of  tracks, 
terminal  facilities,  etc.,  of  Nashville.  Chattanooga  &  St. 

Louis  Railway. — Under  the  general  incorjKmition  laws  of 
the  state  of  Georgia  railroads  are  authorized  "  to  cross,  inter- 
sect, or  join  or  unite  its  railroads  with  any  railroad  heretofore 
or  hereafter  to  be  constructed,  at  any  point  in  its  route,  or 
upon  the  ground  of  any  other  railroad  company,  with  the  nec- 
essary turnouts,  sidings,  and  switches,  and  other  conveniences 
necessary  in  the  construction  of  said  road,  and  may  run  over 
*  any  part  of  any  railroad's  right  of  way  necessary  or  proj)er  to 
reach  its  freight  depot,  in  any  city,  town,  or  village  through 
or  near  which  said  railroad  may  run,  under  the  limitations 
hereinafter  named;  but  in  crossing  another  railroad,  either 
over,  under,  at  grade,  level  or  otherwise,  it  shall  be  at  the  ex- 
pense of  the  company  making  the  crossing,  and  in  such  way 
and  manner,  at  the  time  of  construction,  as  not  to  interfere 
with  said  railroad  in  its  regular  travel  or  business.  Code  Ga. 
1895,  §  2167  (6). 

Railways  in  Georgia  may  also  contract  as  to  joint  use  of  right  of  way, 
or  tracks,  when.  See  code  Ga.  1895,  %  1865. 

Width  Of  right  Of  way.— The  width  of  the  right  of  way 
granted  railroads  chartered  under  the  general  laws  of  Georgia 
is  200  feet.  Code  Ga.  1895,  §  2167  (4). 

Railroads  chartered  under  the  general  laws  may  take  land  outside  of 
its  200  foot  right  of  way  for  obtaining  sand.  etc.  97  Ga.,  107. 

Right  of  eminent  domain;  police  powers.—'4  The  exercise  of 

right  of  eminent  domain  shall  never  be  abridged,  nor  so  con- 
strued as  to  prevent  the  general  assembly  from  taking  the 
property  and  franchises  of  incorporated  companies  and  sub- 
jecting them  to  public  use,  the  same  as  property  of  individ- 
uals, and  the  exercise  of  the  police  power  of  the  state  shall 
never  be  abridged  nor  so  construed  as  to  permit  corporations 
to  conduct  their  business  in  such  a  manner  as  to  infringe  the 
equal  rights  of  individuals,  or  the  general  well-being  of  the 


788  EMINENT    DOMAIN. 

state."     Constitution,  article  4,  sec.  2,  par.  2.     See  also  code 
Ga.  1895,  §  5798. 

Privileges  granted  to  railroad  companies  already  incor- 
porated.— Any  railroad  company  that  has  been  already  incor- 
porated, whether  by  act  of  the  general  assembly  incorporating 
the  same  by  name  or  under  the  provisions  of  the  general  rail- 
road law  of  the  state,  and  whether  organized  or  not,  is  hereby 
declared  to  be  a  legal  and  subsisting  corporation  under  the 
laws  of  Georgia,  and  may  amend  its  charter  either  by  adopting 
the  provisions  of  this  article  or  by  extending  the  time  of  ex- 
piration of  its  original  charter  for  a  period  of  fifty  years,  and 
when  it  so  amends  its  charter  it  may  retain  its  original  organ- 
ization and  the  same  amount  of  capital  stock  provided  for  in  its 
original  charter,  and  any  other  powers  and  privileges,  except 
exemption  from  taxation,  granted  in  its  original  charter, 
which  may  not  be  in  conflict  with  this  article  or  any  other  act 
relating  to  the  powers  and  duties  of  railroad  companies,  and 
such  amendments  shall  be  without  prejudice  to  any  of  its  prior 
rights  or  contracts;  and  the  provisions  of  this  article  may  also 
be  adopted  by  any  person  or  persons,  now  owning  or  oper- 
ating a  railroad  in  this  State,  without  prejudice  to  such  organ- 
ization as  they  may  have  already  affected,  and  without  preju- 
dice to  their  existing  contracts  and  obligations.  Whenever  any 
railroad  company  desires  to  amend  its  charter,  or  any  person 
or  persons  desire  to  adopt  the  provisions  of  this  article,  as 
above  provided,  it  or  they  shall  file  a  petition  with  the  secre- 
tary of  state,  setting  forth  particularly  in  what  manner  it  is 
desired  to  amend  or  adopt  the  provisions  of  this  article.  When 
such  petition  is  filed,  the  secretary  of  state  shall  issue  to  said 
company  or  persons,  under  the  great  seal  of  the  state,  a  certif- 
icate setting  forth  the  manner  in  which  said  charter  is  amended, 
if  the  petition  was  for  amendment,  or,  if  the  petition  was  to 
adopt  the  provisions  of  this  article,  then  a  certificate  setting 
forth  that  said  persons  are  a  body  corporate,  with  all  the  pow- 
ers, duties,  and  liabilities  of  this  article.  Before  said  certificate 
shall  issue,  said  petitioner  or  petitioners  shall  pay  to  the  treas- 
urer of  the  state  the  sum  of  fifty  dollars.  Code  Ga.  1895,  §  2178. 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     789 

Right  of  telegraph  companies  to  occupy  right  of  way  of 

railroads. — "Any  person  or  any  duly  incorporated  telegraph 
company  having  the  right  to  do  business  in  this  state  shall 
have  the  right  to  construct,  erect,  and  maintain  upon  the  right 
of  way  of  the  several  railroad  companies  in  this  state,  and 
along  the  lines  thereof,  their  posts,  fixtures,  and  wires,  and  to 
operate  the  same."  Code  Ga.,  1895,  §2345. 

1.  A  contract  between  a  railroad  and  telegraph  company,  vesting  in  the 
latter  company  exclusive  rig-lit  to  use  former's  right  of  way  for  tele- 
graph purposes,  is  void  as  against  public  policy.     65  Ga.,  160. 

2.  For  method  of  assessing  damages  for,  see  \  4685  of  code  of  Ga.  1895, 
which  is  fully  set  out  further  on  in  this  chapter,  with  notes;  also  acts 
Ga.  1898,  No.  135,  p.  288. 

3.  For  amendment  to  the  law  in  this  regard,  see  acts  (to.,  approved 
Dec.  21,  1897,  and  acts  Ga..  1898,  No.  135,  p.  280. 

Same.    Duties  of  telegraph  company.— Said  fixtures,  posts, 

and  wires  shall  be  erected  at  such  distances  from  the  tracks  of 
said  railroads  as  will  prevent  any  and  all  damages  to  said  rail- 
road companies  by  the  falling  of  said  fixtures,  posts,  or  wires 
upon  said  railroad  tracks,  and  such  telegraph  companies  shall 
be  liable  to  said  railroad  companies  for  all  damages  resulting 
from  a  failure  to  comply  with  the  provisions  of  this  section. 
CodeGa.,  1895,  §2346. 

For  notice  necessary  to  be  given  by  telegraph  company  to  railroad 
company,  where  it  proposes  to  condemn  property  of,  see  acts  Ga.  1898, 
No.  135,  p.  280. 

Laws  apply  to  Western  &  Atlantic  Railroad.— "All  laws  of 

force  regulating  the  liability  of  railroad  companies  in  this 
state  for  damages  done  by  the  running  of  locomotives,  cars, 
and  other  machinery,  are  hereby  declared  to  apply  equally  to 
the  Western  &  Atlantic  Railroad,  and  in  the  bringing  of  all 
suits  against  the  Western  &  Atlantic  Railroad,  the  same  shall 
be  regulated  by  the  laws  in  existence  on  that  subject  at  the 
time  of  the  adoption  of  this  code. "  Code  Ga.  1895,  §  1023. 

Where  the  damage  for  which  the  suit  was  brought  was  received  be- 
fore the  adoption  of  the  code,  see  40  Ga.,  416.  What  action  maintain- 
able under  this  section  by  the  widow  of  an  engineer  killed  by  the  col- 
liding of  two  trains,  see  34  Ga.  423. 

Same.  Road  laws  also  apply  to  Western  &  Atlantic  Rail- 
road.— "All  the  public  road  laws  and  penal  laws  touching  the 


790  EMINENT    DOMAIN. 

railroads  of  this  state,  whether  to  obligate  or  protect,  apply 
to  the  state  road,  unless  specially  excepted,  or  some  other  pro- 
vision is  prescribed  in  lieu  of  some  one  or  more  thereof."  Code 
Ga.  1895,  §  1022,  vol.  1. 

The  acts  of  1856  (Cobb,  154)  do  not  apply  to  the  Western  &  Atlantic 
Railroad.  23  Ga.,  436.  It  is  subject  to  the  same  liabilities  for  damages, 
however,  as  other  roads.  34  Ga.,  424.  See  also  53  Ga.,  124. 

HOW  LAND  CONDEMNED  IN  GEORGIA. 

Condemnation  of  private  property ;  notice,  and  to  whom 
given ;  taking  private  property.— All  corporations  or  persons 

authorized  to  take  or  damage  private  property  for  public  pur- 
poses shall  proceed  as  herein  set  forth.  Code  Ga.,  1895, 

§  4657. 

1.  Condemnation  on  purchased  road. — Where  the  railroad  rights, 
powers,  privileges,  and  franchises  of  a  domestic  corporation  of  Georgia 
are  purchased,  then,  in  determining  the  power  to  condemn  on  such  a 
line,  regard  must  be  had  to  the  law  of  its  organization  as  well  as  to  the 
general  laws  of  the  state.  In  other  words,  as  to  the  line  of  such  a  road, 
the  N.,  C.  &  St.  L.  Ry.  would  be  vested  with  all  the  powers  and  priv- 
ileges, and  subject  to  all  the  duties  and  liabilities,  of  said  corporation 
whose  road  was  purchased.  15  Lea  (Tenn.).  37;  112  U.  S.,  610;  see,  also, 
case  of  Rogers  v..N.,  C.  &  St.  L.  Ry.,  decided  November  9.  1898,  by  the 
United  States  circuit  court  of  appeals,  sitting  at  Cincinnati,  but  which 
opinion  has  not  yet  been  reported.  Though  the  charter  must  be  looked  to, 
yet  it  will  not  always  control  in  condemning,  for,  where  a  statute  pre- 
scribes a  mode  by  which  land  may  be  condemned  to  the  use  of  chartered 
railways,  and  thereafter  the  legislature,  by  general  act,  prescribes  a  dif- 
ferent mode,  the  company  must  proceed  in  the  mode  prescribed  by  the  lat- 
ter act.  Such  a  statute  does  not  impair  vested  rights,  but  merely  affects 
remedies.  Thompson  on  Corp..  sec.  5407;  81  Ky.,  221;  12  Heis.  (Tenn.),  54. 

Payment  or  tender  of  compensation.— if  said  corporations 

or  persons  cannot  by  contract  procure  the  land,  easement,  right 
of  way,  waterway,  franchise,  or  other  interest  or  property 
useful,  needful,  and  necessary  for  public  purposes,  and  author- 
ized by  law  to  be  taken  or  damaged,  then  it  shall  be  lawful  for 
said  corporation  or  person  to  take  or  damage  said  property, 
upon  paying  or  tendering  to  the  owner  thereof  just  and  ade- 
quate compensation  for  the  land,  franchise,  or  other  interest  or 
property  so  to  be  taken  or  used.  Code  Ga.  1895,  §4658. 


GENERAL    POWERS    OF   THE    N.,    C.    A    ST.    L.    RY.  791 

When  parties  cannot  agree  as  to  compensation.— If  the 

parties  cannot  agree  upon  the  compensation  to  be  paid,  the 
same  shall  be  assessed  and  determined  in  the  following  manner. 
CodeGa.  1895,  §4659. 

Notice  to  owner. — The  corporation  or  jxjrson  seeking  to  con- 
demn property  for  public  purposes  shall  serve  a  notice  upon 
the  owner  of  the  property  and  upon  the  owner  of  any  remain- 
der, reversion,  mortgage,  lease,  security -deed,  or  other  interest 
therein.  Code  Ga.  1895,  §  4660. 

For  what  notice  is  necessary,  see  90  Ga.,  680. 

Notice  if  owner  under  disability.— if  the  owner,  or  any  of 

the  owners,  shall  be  a  minor  or  under  any  disability  whatso- 
ever, such  notice  shall  be  served  upon  his  or  their  personal 
representatives.  Code  Ga.  1895,  §  4661. 

If  there  be  no  personal  representative.— if  there  be  no  per- 
sonal representative,  such  notice  shall  be  served  personally 
upon  the  minor  and  upon  the  ordinary  of  the  county  where  the 
property  is  located,  who  shall  appoint  a  guardian  ad  litein  to 
represent  the  minor  in  said  litigation.  Code  Ga.  1895,  §  4662. 

Guardian  ad  Htem  for  minor.— If  such  ordinary,  by  reason 
of  interest  or  other  cause,  is  disqualified,  such  notice  shall  be 
served  upon  the  clerk  of  the  superior  court  of  the  county,  who 
shall  appoint  a  guardian  ad  litein  to  represent  the  minor. 
Code  Ga.  1895,  §  4663. 

Notice  Where  trust  property.— If  the  property  sought  to  be 
condemned  is  trust  property,  or  property  in  which  remainders 
have  been  created,  such  notice  shall  be  served  upon  the  trustee, 
and  also  upon  such  persons  as  have  an  interest  under  the  con- 
veyance and  who  are  of  age.  Code  Ga.  1895,  §  4664. 

Service  of  notice  on  nonresidents.— If  the  owner,  or  any  of 

the  owners,  or  persons  in  any  way  interested  in  the  property, 
reside  out  of  the  state,  notice  shall  be  served  upon  the  jrerson 
in  possession,  and  a  like  notice  shall  In?  inclosed  in  an  envelope, 
properly  stumped  and  directed,  and  l>e  by  the  said  corju^ration 
or  person  delivered  to  the  ordinary  of  the  county,  who  shall 
mail  the  same  to  said  owner,  or  owners,  at  their  address,  if 
known,  and  if  the  address  l>e  not  known,  the  ordinary  shall  act 


792  EMINENT    DOMAIN. 

for  such  nonresident  owners  in  the  manner  herein  provided  for 
unrepresented  minors.  An  entry  of  the  facts  and  his  action 
therein  shall  be  entered  on  the  minutes  by  the  ordinary.  Code 
Ga.  1895,  §4665. 

Where  owner  unknown,  or  possibility  of  unborn  remain- 
der-men.— If  the  owner  or  owners  of  such  property,  or  of  any 
interest  therein,  are  unknown,  or  there  is  possibility  of  unborn 
remainder-men  having  an  interest,  notice  shall  be  served  upon 
the  person  in  actual  possession  of  the  property,  and  also  upon 
the  ordinary,  who  shall  act  for  said  unknown  owner  as  pro- 
vided for  in  case  of  minors;  Provided,  however,  That  when  the 
unknown  owner  may  appear  he  may  ask  for  and  have  another 
assessment  under  the  terms  of  this  chapter,  and  he  shall  receive 
the  amount  then  assessed;  and  in  the  event  the  second  assess- 
ment is  less  than  the  first,  the  ordinary  shall  return  the  over- 
plus to  the  corporation  or  person  originally  condemning.  Code 
Ga.  1895,  §4666. 

HOW  Service  effected. — Unless  service  is  acknowledged  or 
waived,  a  copy  of  such  notice  shall  be  served  by  a  sheriff  or 
deputy,  personally,  or  by  leaving  a  copy  at  the  residence  of 
the  owner,  or  mailed  in  case  of  nonresidents,  at  least  fifteen 
days  before  the  day  fixed  for  assessing  the  damages.  Code  Ga. 
1895,  §4667. 

Where  notice  Cannot  be  served. — In  cases  where  service  can- 
not be  effected  by  leaving  notice  at  place  of  residence,  or  by 
personal  service,  the  notice  shall  be  posted  at  the  courthouse 
door  fifteen  days  and  be  published  once  in  the  official  paper  one 
week  before  the  day  fixed  for  assessing  the  damages.  Code  Ga. 
1895,  §4668. 

Direction  and  contents  of  notice. —  All  notices  shall  be 

directed  to  the  owner  or  owners,  and  shall  describe  the  prop- 
erty or  franchise  and  the  amount  of  interest  therein  sought  to 
be  condemned  ;  fix  the  time  when  the  hearing  will  be  had  on 
the  premises  ;  give  the  name  of  the  assessor  selected  by  said 
corporation,  and  request  the  owner,  trustee,  or  representative, 
as  the  case  may  be,  to  select  an  assessor.  Code  Ga.  1895, 
§4669. 


GENERAL    POWERS   OF   THE    N.,    C.    <fe    ST.    L.    RY.  703 

Appointment  of  assessors ;  when  assessor  to  be  appointed 

by  Ordinary. — If  the  corporation  seeking  such  condemnation 
and  assessment  shall  notify  the  ordinary  that  the  owner  or  Ar- 
sons interested  have  failed  to  select  an  assessor,  or  that  the 
owners  fail  to  agree  upon  an  assessor,  or  that  the  owner  is  un- 
known, or  that  the  owner  or  any  one  of  the  owners  is  a  minor 
or  otherwise  under  disability  and  without  legal  representative, 
the  ordinary  of  the  county  where  the  property  is  situated,  or 
the  franchise  sought  to  be  condemned  is  used,  shall  select  an 
assessor  for  such  persons  or  owners,'  and  if  such  ordinary  is 
disqualified,  then  the  clerk  of  the  superior  court  of  the  county 
shall  make  the  selection,  after  like  notice  by  such  corporation. 
Code  Ga.  1895,  §  4670. 

Third  assessor. — The  two  assessors  thus  selected  shall  select 
a  third  assessor;  but.  if  in  five  days  they  do  not  agree  upon  a 
third  assessor,  the  judge  of  the  superior  court  of  the  county, 
upon  application  of  either  party,  of  which  the  other  shall  have 
notice,  shall  make  the  selection  in  term-time  or  vacation.  Code 
Ga.  1895,  £4671. 

Oath  Of  assessor. — The  three  assessors  thus  selected  shall  l>e 
sworn  by  some  officer  authorized  to  administer  an  oath  "to  do 
equal  and  exact  justice  between  the  parties  according  to  law." 
Code  Ga.  1895,  §  4672. 

Hearing  before  assessors ;  when  hearing  cannot  be  at  time 

fixed. —  If,  by  reason  of  delay  in  appointing  assessors,  or  other 
cause,  the  hearing  cannot  be  had  at  the  time  h'xed  in  the 
original  notice,  the  assessors  shall  fix  the  time  for  the  hearing 
and  notify  both  parties,  in  writing,  of  the  time  and  place  of  the 
hearing.  Code  Ga.  1895,  §  4673. 

Evidence  to  be  heard  by  assessors.— The  said  assessors  shall 

hear  all  evidence  offered  by  either  party  as  to  the  value  of  the 
property  to  be  taken  or  used,  or  as  to  damages  done  the  owners 
of  the  same,  and  the  benefits  to  the  owner  accruing  from  the 
use  of  the  property  by  the  corporation  or  persons.  Parties 
may  be  represented  in  person  or  by  attorney  before  the  as- 
sessors. Code  Ga.  1895,  §4674. 


794  EMINENT    DOMAIN. 

Assessment  of  value  and  damages. — The  assessors,  or  a 

majority  of  them,  shall  assess  the  value  of  the  property  taken 
or  used,  or  damage  done,  and  shall  also  assess  the  consequential 
damages  to  the  property  not  taken,  and  deduct  from  such  con- 
sequential damages  the  consequential  benefits  to  be  derived  by 
the  owner  from  the  operation  of  its  franchise  by  the  corpora- 
tion, or  by  the  carrying  on  of  the  business  of  the  corporation 
or  person  taking  or  damaging  the  property;  Provided,  The  con- 
sequential benefits  assessed  shall  in  no  case  exceed  the  conse- 
quential damage  assessed;  Provided,  further,  That  nothing  in 
this  section  shall  be  so  construed  as  to  deprive  the  owner  of  the 
actual  value  of  his  property  so  taken  or  used.  Code  Ga. 
1895,  §  4675. 

Finding  of   assessors;    how  and  where  entered.— Said 

assessors  shall  enter  their  finding  on  the  notice  substantially  as 
follows:  "Upon  the  application  of  A.  B.  to  condemn  the  fol- 
lowing property  of  C.  D.—  — ,  notice  was  duly  served  by  the 
sheriff  (or  his  deputy)  on  C.  D.  (owner,  trustee,  representative, 
or  ordinary,  as  the  case  may  be),  by  (mailing,  posting,  etc., 
as  the  case  may  be;.  The  applicant  appointing  E.  F.  as 
assessor.  The  (owner,  ordinary,  representative,  as  the  case 
may  be)  appointed  G.  H.  as  assessor,  and  they  two  (or  judge  of 
the  superior  court)  appointed  1.  J.  as  assessor;  who,  after 
being  duly  sworn  and  hearing  the  evidence,  find  and  award  that 

for  taking  the  property  sought  to  be  condemned,  to- wit: , 

the  said  A.  B.  shall  pay  to  C.  D.  as  owner,  the  sum  of  $ . 

The  consequential  damages  to  the  property  of  C.  D.  not  taken 

amount  to  $ ,  and  the  consequential  benefits  to  $ ; 

and  the  said  A.  B.  shall  pay  said  C.  D.  the  difference  between 
such  damage  and  such  benefit.''  Code  Ga.  1895,  §  4676. 

Filing  and  record  Of  award. — Within  ten  days  after  the 
award  is  made,  it  shall  be  filed  and  recorded  in  the  office  of  the 
clerk  of  the  superior  court  of  the  county  where  the  property  is 
situated  or  franchise  sought  to  be  condemned  is  exercised. 
Code  Ga.  1895,  §  4677. 

Appeal,  final  judgment,  etc.— In  case  either  party,  or  the 
representative  of  either  party,  is  dissatisfied,  he  or  they 


(iKNKllAL   POWERS   OF   THE    N.,    C.    A   ST.    L.    RV.  795 

have  the  right,  within  ten  days  from  the  time  the  award  is 
filed,  to  enter  in  writing  an  appeal  from  the  award  to  the  supe- 
rior court  of  the  county  where  the  award  is  filed;  and,  at  the 
term  succeeding  the  filing  of  the  appeal,  it  shall  be  the  duty  of 
the  judge  to  cause  an  issue  to  be  made  and  tried  by  a  jury  as 
to  the  value  of  the  property  taken  or  the  amount  of  damage 
done,  with  the  same  right  to  move  for  a  new  trial  and  file  a 
bill  of  exceptions  as  in  other  cases  of  common  law.  Code  Ga. 
1895,  §4678. 

Appeal  not  tO  delay,  When. — The  entering  of  said  appeal 
and  the  proceedings  thereon  shall  not  hinder  or  delay  in  any 
way  the  corporation's  or  person's  work  or  the  progress  thereof, 
if  the  applicant  to  condemn  shall  pay  or  tender  to  the  owner 
the  amount  of  the  award,  and,  in  case  -of  the  refusal  of  the 
owner  to  accept  the  same,  deposit  the  amount  awarded  with 
the  clerk  of  the  superior  court  for  the  benefit  of  the  owner. 
Code  Ga.  1895,  §  4679. 

Tender  or  acceptance  not  prevent  appeal.— The  tender, 

payment,  or  acceptance  of  the  amount  shall  not  prevent  either 
party  from  prosecuting  the  appeal.  If  the  amount  so  awarded 
by  the  assessors  is  less  than  that  found  by  the  final  judgment, 
the  company  shall  be  bound  to  pay  the  sum  so  finally  adjudged 
in  order  to  retain  the  property;  and  if  it  be  less  than  that 
awarded  by  the  assessors,  the  owner  shall  be  bound  to  refund 
any  excess  paid  to  or  received  by  him,  and  a  judgment  for  such 
excess  shall  be  rendered  against  him,  to  be  collected  "by  levy  as 
in  other  cases.  Code  Ga.  1895,  §  4680. 

When  execution  Shall  iSSUe. — If  no  appeal  be  entered  within 
ten  days  after  the  award  is  filed,  or  if  the  corporation  shall  fail 
to  pay  the  amount  of  the  award  or  final  judgment,  the  clerk 
shall  issue  execution  upon  such  award  or  judgment,  which  may 
be  levied  upon  any  property  of  the  corporation  or  person 
condemning.  Code  Ga.  1895,  §4681. 

Notice  and  award  to  be  entered  on  minutes.— in  all  cases 

the  clerk  shall  enter  the  notice  and  award  thereon  upon  the 
minutes  of  the  court,  ami  the  corporation  or  j>erson  condemn- 
ing shall  pay  the  costs  for  the  condemnation  proceedings  to 


796  EMINENT    DOMAIN. 

each  assessor,  not  exceeding  two  dollars  per  day,  and  other 
cost  as  now  provided  by  law  in  civil  cases  in  the  superior  court. 
Code  Ga.  1895,  §  4682. 

What  interest  to  vest  in  party  seeking  condemnation.— 

Upon  the  payment  by  the  corporation  or  person  seeking  to  con- 
demn of  the  amount  of  the  award  and  final  judgment  on  appeal, 
such  corporation  or  person  shall  become  vested  with  such  inter- 
est in  the  property  taken  as  may  be  necessary  to  enable  the 
corporation  or  person  taking  to  exercise  their  franchise  or  con- 
duct their  business;  and  whenever  the  corporation  or  person 
shall  cease  using  the  property  taken  for  the  purpose  of  con- 
ducting their  business,  said  property  shall  revert  to  the  person 
from  whom  taken,  his  heirs  or  assigns.  Code  Ga.  1895, 
§  4683. 

Payment  tO  minor. — If  the  person  to  whom  the  money 
belongs  shall  be  a  minor  or  under  any  disability,  and  without 
a  legal  representative  entitled  to  receive  the  same,  the  money 
shall  be  paid  to  the  ordinary  of  the  county,  who  shall  at  once 
cause  the  same  to  be  invested;  and  to  this  end  the  ordinary  of 
the  county  of  his  residence  shall  appoint  guardian  or  other 
proper  representatives  to  receive  said  money  and  manage  the 
property  in  which  it  may  be  invested.  Code  Ga.  1895,  '§  4684. 

TO  What  Condemnations  applicable.— The  method  of  con- 
demnation of  property  and  assessment  of  damages  hereinbefore 
provided  shall  apply  to  condemnation  by  cities,  counties,  rail- 
roads, telegraph,  canal,  mining,  and  waterworks  companies, 
drainage  by  counties,  tramroads,  lighthouses,  and  beacon  con- 
struction, and  to  all  persons  or  corporations  having  the  privilege 
of  exercising  the  right  of  eminent  domain;  but  nothing  herein 
shall  be  construed  to  alter  or  repeal  the  law  for  opening  public 
or  private  roads  or  ways.  Code  Ga.  1895,  §  4685. 

By  Acts  Ga.  1898,  No.  135,  p.  280,  of  combined  acts  of  1896-7-8,  the 
above  section  was  amended  as  to  the  method  of  assessing  damages  for 
condemnation  by  telegraph  companies,  and  provided  that  only  one  as- 
sessment need  be  make  for  entire  road  which  may  be  had  in  any  one 
county  where  service  can  be  made  as  therein  provided,  which,  however, 
must  be  in  county  of  principal  office,  if  company  has  one  in  state.  See 
act  itsef. 


GENKKAI.    I 'OWE  US   OF   THE    N.,    C.    A   ST.    L.    RV.  797 

Subpoena  and  attendance  of  witnesses.— Said  assessors  shall 

have  the  same  power  to  issue  subpoenas  and  compel  the  attend- 
ance of  witnesses  as  is  vested  in  the  superior  court.  Code  Ga. 
1895,  §4686. 

GENERAL  NOTES  TO  GEORGIA  ACTS. 

Railroad  right  Of  way. — When  summary  way  of  assessing 
damages  for  right  of  way  does  not  deprive  landowner  of  com- 
mon law  remedy  to  recover  damages:  1  Ga.,  524-530.  Right 
not  complete  till  compensation:  19  Ga. ,  427.  Appeal  from 
award  as  to  right  of  way  in  four  days  from  decision:  9  Ga., 
405;  18  Ga.,  607-609;  30  Ga.,  43.  Other  law  as  to  the  right 
of  way:  14  Ga.,  327.  Injunction  by  railroad  against  encroach- 
ment on  their  right  of  way:  27  Ga.,  499.  The  actual  damages 
from  invasion  of  property  by  railroad  for  right  of  way,  the  meas- 
ure of:  45  Ga.,  180.  When  right  of  way  granted  over  land,  not 
revocable:  45  Ga.,  531.  As  to  use  of  street  by  railroad:  43 
Ga.,  200.  As  to  costs  in  proceeding  for  right  of  way:  47  Ga., 
345.  Where  owner  cannot  be  compelled  to  take  pay  for  right 
of  way  in  stock,  burden  of  proof  on  the  railroad  company:  48 
Ga.,  44.  As  to  injunction  against  railroad  using  water  near 
right  of  way:  42  Ga. ,  509.  When  owner  not  debarred  from 
resorting  to  trespass  for  right  of  way:  48  Ga.,  423.  Injunc- 
tion sustained  against  city  appropriating  right  of  way  of  rail- 
road for  a  street:  53  Ga.,  120.  As  to  when  the  benefits  de- 
rived by  the  owner  can  be  set  off  against  the  value  of  the  land 
taken  and  against  other  damage:  30  Ga.,  43;  51  Ga. ,  470;  53 
Ga.,  123.  As  to  evidence  of  value  of  land  taken  and  as  to  conse- 
quential damages:  53  Ga.,  178.  Adverse  possession  by  rail- 
road of  right  of  way:  54  Ga. ,  293-296.  Where  no  necessity  to 
resort  to  injunction,  adequate  remedy  by  levy  and  sale  or  eject- 
ment: 54  Ga.  579;  but  see  65  Ga.,  614.  Interest  only  given  as 
part  of  damages  for  right  of  way  from  time  damage  occurred: 
51  Ga.,  471. 

Legislature  may  prescribe  mode  of  ascertaining  what  is  just 
and  adequate  compensation:  83  Ga.,  257. 


798  EMINENT    DOMAIN. 

Assessments  cover  all  damages,  foreseen  or  not,  resulting 
from  proper  construction  of  road:  69  Ga.,  396. 

Amount  of  assessors'  award  paid  or  tendered,  work  may 
proceed.  Phrase  ' '  from  the  time  said  condemnation  proceed- 
ings are  begun"  (in  section  1689  (1),  Code  of  1882)  conflicts 
with  constitution,  in  so  far  as  it  authorizes  work  done  before 
payment  of  tender:  83  Ga.,  263. 

Compensation  continuously,  and  properly  tendered  is  compen- 
sation "paid:"  83  Ga.,  259;  citing  69  Ga.,  320. 

Land  along  railroad  track,  in  possession  of  party  over  fifteen 
years  under  color  of  title,  could  not  constitute  right  of  way: 
76  Ga.,  74:9. 

Injunction  proper  remedy  against  purchaser  of  road  sold  by 
court  pending  assessment  of  damages:  65  Ga.,  614. 

Agreement  of  plaintiff's  attorney  not  to  enjoin  railroad  did 
not  give  right  of  entry  without  ascertaining  value:  76  Ga.,  90. 

Constitutional  inhibition  against  taking  private  property  for 
public  purposes  without  compensating,  etc.,  not  warrant  in- 
junction where  company  bona  fide  claims  right  of  way:  77 
Ga.,  323. 

Witness  on  appeal  may  be  asked  as  to  value,  without  restric- 
tion to  cash  market  value:  71  Ga. ,  240. 

Appeal  vacates  award;  and  where  husband  consented  to  cer- 
tain valuation,  but  wife  and  minor  children  appealed,  his  act 
did  not  bind  them:  71  Ga.,  240. 

Steam  railroad  company  cannot  lay  tracks  along  city  street 
without  express  sanction  of  state  legislature:  80  Ga. ,  793. 

By  legislative  grant  to  Georgia  Southern  &  Florida  Railroad 
Company  of  rights  and  privileges  of  Central  Railroad  authority 
was  not  conferred  to  lay  tracks  on  streets  of  Macon:  80  Ga., 
794. 

As  to  railroad  company's  right  to  build  additional  tracks 
along  right  of  way,  on  street  dedicated  to  public:  91  Ga., 
573. 

Alley  between  road  and  lot  condemned  may  be  estimated  in 
damages.  In  such  case  value  of  easement  and  one-half  that  of 
ground  should  be  counted:  71  Ga.,  240. 


GENERAL    POWERS    OF    THE    N.,    C.    A    ST.    L.     RY.  7 '.''.' 

Railroad  authorized  with  condition  precedent,  to  use  street, 
cannot  until  condition  complied  with:  84  Ga.,  376. 

Railroad  purchasing  right  of  way  and  taking  away  protecting 
fence,  liable  to  tenant  or  grantor  for  damages  by  cattle:  84 
Ga.,  256. 

Though  railroad  paid  damages  for  right  of  way,  liable  for 
damage  to  crops,  caused  by  subsequent  removal  of  stock  gap: 
85  Ga.,  444. 

Liability  of  railroad  company  for  construction  of  roadway 
whereby  adjoining  landowners  injured;  views  from  all  stand- 
points and  rules  laid  down:  69  Ga. ,  396. 

County  road,  measure  of  damages  for  exercise  of  right  of 
eminent  domain  is  depreciation  in  market  value  of  property: 
85  Ga.,  420. 

KENTUCKY  ACTS  AS  TO  EMINENT  DOMAIN. 

Nature  of  railway's  holding  of  right  of  way.— [In  Ken- 
tucky.] By  acts  Ky.  1856,  the  Tennessee  charter  of  the  Nash- 
ville &  Northwestern  Railroad  Company,  now  the  Northwestern 
Branch  of  the  Nashville,  Chattanooga  &  St.  Louis  Railway, 
was  reenacted  in  Kentucky,  and  the  company  granted  all  the 
privileges,  franchises,  powers,  and  responsibilities  conferred 
and  granted  by  said  Tennessee  charter.  See  pp.  125-6  herein. 

For  charter  provisions  on  this  subject  of  the  Hickman  & 
Obion  Railroad  Company,  which  extended  from  Union  City  to 
Hickman,  Ky. ,  and  which  had  been  purchased  by  the  Nashville 
&  Northwestern  Railroad  Company  prior  to  the  purchase  of 
the  latter  railroad  by  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  see  p.  104  herein. 

For  charter  provisions  of  Paducah,  Tennessee  &  Alabama 
Railroad  Company,  see  p.  487,  et  se<j. 

The  provisions  in  charters  prescribing  a  mode  for  condemn- 
ing land  were  repealed  by  acts  Ky.  1882,  and  a  new  mode  en- 
acted. 85  Ky.,  270;  81  Ky.,  221.  For  new  mode,  see 
further  on  in  this  chapter. 

Same.    Easement  only  acquired.— By  §  839  of  the  code  Ky. 

1894,  the  character  of  title  acquired  by  condemnation  is  only 


800  EMINENT    DOMAIN. 

an  easement.  See  section  itself,  further  on  in  this  chapter. 
This  easement  ends  when  the  purpose  for  which  it  was  con- 
demned no  longer  exists.  98  Ky.,  67. 

]f  the  right  of  way  from  Union  City  to  Hickman,  Ky.,  had  been 
condemned  under  section  23  of  the  charter  of  the  Nashville  &  North- 
western Railroad  Company,  and  the  assessment  paid,  the  company  would 
have  acquired  a  fee  simple  title  to  it.  See  pp.  91-2  herein.  If  no  con- 
demnation, then  an  easement.  See  p.  92  herein.  The  right  of  way, 
however,  was  acquired  under  the  charter  of  the  Hickman  &  Obion  Rail- 
road. See  p.  104  herein. 

Adverse  possession  Of  right  Of  way.— Where  one  who  pur- 
chased a  farm  over  which  a  railroad  company  had  previously 
purchased  and  had  granted  a  right  of  way,  entered,  "in  sub- 
jection to  and  friendship  with  the  right  of  way,"  the  cultiva- 
tion by  him  of  the  farm  and  the  erection  of  an  occasional  line 
of  fencing  on  or  about  the  right  of  way  did  not  tend  to  show 
an  adverse  holding.  98  Ky. ,  661.  Even  if  the  possession  was 
adverse,  and  so  contemplated  for  fifteen  years,  the  adverse 
claimant,  by  knowingly  permitting  the  railroad  company  which 
had  paid  his  grantor  for  the  strip  of  land  and  held  the  legal 
title,  to  re-enter  and  erect  costly  improvements,  must  be  treated 
as  having  abandoned  the  adverse  claim  and  cannot  recover 
damages.  98  Ky.,  661.  Where  one  permits  the  construction 
of  a  railroad  through  his  land  without  objection,  he  cannot  re- 
cover the  possession  of  the  land  taken,  and  this  rule  applies  to 
a  married  woman;  but  he  may  recover  damages  if  he  pro- 
ceeds in  time.  96  Ky.,  401.  But  see  92  Ky.,  407. 

Presumption  upon  sale  of  right  of  way.— if  a  person  has 

sold  to  a  railroad  the  right  of  way  along  his  property,  it  must 
be  assumed  that  he  contemplated  and  assented  to  such  use  of 
the  way  as  would  render  it  practicable  for  the  purpose  for 
which  it  was  intended,  and  he  cannot  complain,  unless  the  com- 
pany has  failed  to  use  proper  care  to  avoid  unnecessary  injury. 
7  R.,  606.  See,  also,  99  Ky.,  570. 

Condemnation  cannot  be  limited  by  contract.— One  board  of 

directors  of  a  railroad  company  cannot  bargain  away  its  power 
of  eminent  domain,  or  curtail  it  in  any  way,  so  as  to  bind 
subsequent  boards.  102  Mass.,  19.  Hence,  where  a  land- 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.     RY. 

owner  dedicated  a  right  of  way  to  a  railroad  company  on  con- 
dition that  no  greater  width  should  ever  he  taken,  it  was  held, 
that  the  railroad  company  was  not  estopped  from  condemning 
a  broader  strip  when  necessary.  87  Ky.,  72;  113  111.,  156; 
102  Mass.,  19.  Sao,  also,  5  Colo.,  270;  11  Kan.,  602;  6 
Colo.,  2;  64  III.,  414;  71  111.,  592;  45  Mo.,  212;  18  Pick. 
(Mass.),  472;  5  Ore.,  117. 
Constitution  of  Kentucky  to  be  accepted  before  acquiring 

land. — "  Xo  railroad  corporation,  organized  or  created  by  or 
under  the  laws  of  any  other  state,  shall  have  the  right  to  con- 
demn land  for,  or  acquire  the  right  of  way  for,  or  purchase  or 
hold  land  for  its  depots,  tracks,  or  other  purposes,  until  it 
shall  have  first  filed  in  the  office  of  the  secretary  of  state  of  this 
state,  in  the  manner  provided  in  the  first  article  of  this  chapter, 
its  acceptance  of  the  constitution  of  this  state,  and  shall  have 
become  organized  as  a  corporation  under  the  laws  of  this  state, 
which  it  may  do  by  tiling  in  the  office  of  the  secretary  of  state 
and  the  railroad  commission  articles  of  incorporation  in  the 
manner  and  form  provided  in  section  763  of  this  article." 
Code  Ky.  1894,  §  765. 

Under  the  above  section,  as  well  as  \\  570  and  841  of  the  Code  of  Ken- 
tucky (1894),  the  board  of  directors  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway,  on  January  21,  1899,  accepted  the  constitution  of  Ken- 
tucky, and  filed  a  copy  of  said  acceptance  together  with  the  charter  of 
the  company  with  the  secretary  of  state  and  railroad  commissioners, 
February  25,  1899.  The  charter  was  filed  with  the  secretary,  as  well  as 
the  commissioners,  several  months  before  February  25,  1899,  but  the 
constitution  of  Kentucky  had  not  been  accepted  by  the  board  of  direc- 
tors at  that  time. 

Powers  of  railroads  chartered  under  general  acts  as  to 
acquiring  right  of  way,  lands,  etc.— Every  company  shall 

possess  the  following  powers  and  be  subject  to  the  following 
liabilities  and  restrictions: 

1.  To  cause  such  examinations  and  surveys  for  the  proposed 
railroad  to  l>e  made  as  may  be  necessary  to  the  selection  of  the 
most  advantageous  route  for  such  road,  and,  for  such  purposes, 
by  its  officers,  agents,  and  servants,  to  enter  upon  lands  or 
waters  of  any  person,  but  subject  to  liability  for  all  damages 
which  they  shall  do  thereto. 

51 


802  EMINENT    DOMAIN. 

2.  To  receive,  hold,  enter  upon,  and  take  possession  of  such 
voluntary  grants  and  donations  of  real  and  other  property  as 
shall  be  made  to  it,  to  aid  in  the  construction  and  maintenance 
and  operation  of  such   road,   but  the  real  property  thus  re- 
ceived sha'l  be  held  and  used  for  the  purpose  of  such  grant  or 
donation  only. 

3.  To  purchase,  hold,  enter  upon,  take  possession  of  and 
use  such  real  estate,   franchise,  and  other  property  as  may  be 
necessary  for  the  construction,   maintenance,  and  accommoda- 
tion of  its  line  of  road;  but  the  same  shall  not  be  taken  or  ap- 
propriated without  the  consent  of  the  owner  until  the  com- 
pensation to  be  made  thereof  is  agreed  upon  or  ascertained, 
and  paid  or  deposited  as  required  by  law.     Code  Ky.    1494, 
§768. 

4.  Same.    Width  of  right  of  way;  may  take  land  for  what; 
change  gauge;  may  change  location,  when.— To  lay  out  its 

road  not  exceeding  one  hundred  feet  in  width,  and  if  more 
than  one  track  is  laid,  fifty  feet  additional  for  each  track,  and 
construct  the  same;  and  for  the  purpose  of  cuttings  or  embank- 
ments, and  procuring  stone,  gravel  or  other  material,  or  for 
the  purpose  of  draining  its  roadbed,  to  take,  in  the  manner 
herein  provided,  such  other  lands  in  the  vicinity  of  or  adjacent 
to  its  road  as  may  be  necessary  for  the  proper  construction, 
operation,  and  security  of  its  road;  and  to  change,  when  it 
deems  proper,  the  gauge  of  its  road;  and  may,  for  the  purpose 
of  avoiding  annoyance  to  public  travel,  or  dangerous  or  dif- 
ficult grades  or  curves,  or  unsafe,  insecure  grounds  or  founda- 
tions, or  for  other  reasonable  cause,  change  the  location, or 
grade  of  any  portion  of  its  road,  but  shall  not,  except  as  other- 
wise provided,  depart  from  the  general  route  prescribed  in  the 
articles  of  incorporation.  Code  Ky.  1894,  §  768(4). 

5.  Right  of  other  roads  to  cross  this;  conditions.— To  con- 
struct its  road  upon  or  across  any  water  course,   private  or 
plank  road,  highway,  street,  lane  or  alley,  and  across  any  rail- 
road  or  canal;   but  the  corporation   shall    restore    the   water 
course,   private  or  plank  road,   highway,   street,  lane,  alley, 
railroad  or  canal  to  its  former  condition,   as  near  as  may  be, 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RY.  803 

and  shall  not  obstruct  the  navigation  of  any  stream  or  ob- 
struct any  public  highway  or  street  by  cars  or  trains  for 
more  than  five  minutes  at  any  one  time,  and  shall  construct 
suitable  road  and  street  crossings  for  the  passage  of  teams 
by  putting  down  planks  or  6ther  suitable  material  between 
and  on  each  side  of  the  rails,  the  top  of  which  shall  be  at 
least  as  high  as  the  top  of  the  rails  of  such  road  or  street; 
and  in  case  the  road  is  constructed  upon  any  public  street  or 
alley,  the  same  shall  be  upon  such  terms  and  conditions  as 
shall  be  agreed  upon  between  the  corporation  and  the  authori- 
ties of  any  city  in  which  the  same  may  be,  but  such  road 
shall  not  be  constructed  upon  any  public  street  or  alley  until 
compensation  shall  be  made  by  the  corporation  therefor  to  the 
owner  of  the  property  adjoining  such  street  or  alley,  and  oppo- 
site where  such  road  is  to  l>e  constructed,  either  by  agree- 
ment or  in  the  manner  provided  by  law.  Code  Ky.  1894, 
§  768  (5). 

Same.    Map  of  route  to  be  recorded;  commission  to  be 

notified  if  Other  railroad  Crossed.— Every  corporation  pro- 
ceeding to  construct  its  road  in  or  through  any  county  shall  file 
and  have  recorded,  at  its  expense,  in  the  county  clerk's  office  of 
such  county,  a  map  of  the  route,  showing  the  center  of  said  pro- 
posed road,  and  the  width  thereof;  and  if,  after  a  road  is  located, 
it  is  desired  to  change  its  location,  or  the  proposed  route  is 
changed,  as  it  may  be,  a  map  showing  such  change,  as  well  as 
the  center  and  width  thereof,  shall  be  tiled  and  recorded,  at  its 
expense,  in  the  county  clerk's  office  of  the  county  in  which  the 
change  is  made.  If  the  proposed  route,  as  indicated  by  the 
map,  crosses  the  lino  of  any  other  railroad,  notice  of  such  fact 
shall,  before  the  construction  of  the  road  is  commenced  near 
the  point  of  crossing,  be  given  to  the  railroad  commission,  who 
shall  give  notice  to  the  corporation  whose  road  it  is  proposed 
to  cross,  as  well  as  the  other  corporation,  of  the  time  and  place 
it  will  meet  to  consider  the  question  of  approving  the  crossing, 
if  objection  IMJ  made  thereto;  and  the  commission  may  deter- 
mine the  manner  in  which  the  crossing  shall  be  made  to  protect 
against  accidents  thereat.  Code  Ky.  1894,  §  767. 


804  EMINENT    DOMAIN. 

Right  of  telegraph  companies  to  condemn  right  of  way 

along  railroad. — By  acts  Ky.  1898,  ch.  49,  p.  123,  telegraph 
companies  were  empowered  to  construct,  maintain  and  operate 
their  lines  along  and  upon  the  right  of  way  and  structures  of 
any  railroad  in  the  state,  upon  terms  therein  set  out. 

Successive  appropriation  or  condemnation  for  right  of 

way. — For  a  full  discussion  of  this  subject,  see  similar  heading 
under  Tennessee  law,  p.  745,  et  seq.,  herein. 

In  absence  of  restrictions  in  charter  or  general  law,  a  rail- 
road company  may  make  successive  appropriations  for  a  right 
of  way,  even  in  face  of  contract  not  to  do  so,  as  a  corporation 
cannot  bargain  away  its  power  of  eminent  domain.  87  Ky., 
72;  9  R.,  924. 

Railroads  may  condemn  for  branches,  switches,  spurs, 

etc. — See  p.  641  herein. 

HOW  LAND  CONDEMNED  IN  KENTUCKY. 

Commissioners;  appointment  to  assess  damages.— When 

any  company  authorized  to  construct  a  railroad  shall  be  unable 
to  contract  with  the  owner  of  any  land  or  material  necessary 
for  its  use  for  the  purpose  thereof,  it  shall  file  in  the  office  of 
the  clerk  of  the  county  court,  a  particular  description  of  the 
land  and  material  sought  to  be  condemned,  and  may  apply  to 
the  county  court  to  appoint  commissioners  to  assess  the  dam- 
ages the  owner  or  owners  thereof  may  be  entitled  to  receive, 
and  thereupon  the  said  court  shall  appoint  three  impartial  house- 
keepers of  the  county,  who  are  owners  of  land,  and  who  shall 
be  sworn  to  faithfully  and  impartially  discharge  their  duties 
under  this  law.  Code  Ky.  1894,  §  835. 

Assessment  of  damages  by  commissioners.— it  shall  be  the 

duty  of  said  commissioners  to  view  the  land  and  material,  and 
to  award  to  the  owner  or  owners  the  value  of  the  land  or  mate- 
rial taken,  which  shall  be  stated  separately  ;  and  they  shall 
also  award  the  damages,  if  any,  resulting  to  the  adjacent  lands 
of  the  owner,  considering  the  purposes  for  which  it  is  taken; 
but  shall  deduct  from  such  incidental  damages  the  value,  if 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     805 

any,  of  the  advantages  and  benefits  that  will  accrue  to  such 
adjacent  lands  from  the  construction  and  prudent  o)>eration  of 
the  railroad  proposed  to  be  constructed.  They  shall  return  a 
report,  in  writing,  to  the  office  of  the  clerk  of  said  court, 
stating  their  award,  and  shall  describe,  in  their  report,  the  land 
and  material  condemned,  give  the  names  of  the  owners,  and 
whether  non-residents  of  the  state,  infants,  of  unsound  mind, 
or  married  women.  Code  Ky.  1894,  §  836. 

1.  Condemnation  of  land. — In  a  proceeding  to  condemn  land  one  of 
the  parties  to  the  controversy  should  not  be  allowed,  in  the  absence  of 
the  other,  to  discuss  the   merits  of  the  case   with   the  commissioners 
appointed  to  assess  the  damages.     L.,  St.  L.  &  T.  R.  Co.  v.  Barrett,  91 
Ky.,  487. 

2.  Measure  of  damages,  in  proceeding  to  condemn  land,  is  the  value 
of  the  land  taken  considering  its  relation  to  the  remainder  of  the  tract, 
and  also  the  damages  by  reason  of  the  depreciation  in  value  of  the  resi- 
due of  the  land,  including  the  cost  of  additional  fencing  made  necessary 
by  the  taking  of  the  land.     The  fencing  is  to  be  included  as  a  part  of  the 
direct  damages,  and  the  cost  thereof  cannot  be  abated  by  the  benefits 
arising  from  building  the  road.     L.,  St.  L.  <fc  T.  R.  Co.  v.  Barrett,  91  Ky. , 
487;  Asher  v.  L.  &  N.  R.  R.  Co.,  87  Ky.,  391;  Covlnaton  R.  Co.  v.  Piel,  87 
Ky.,  267;  E.  &  P.  R.  Co.  v.  Helm.  8  Bush.,  681;  W.  Fa,,,  P.  &  T.  R.  Co.  v. 
GHbsun,  15  Law.  Rep  ,  7. 

3.  Measure  of  damages  to  abutting  property  by  reason  of  the  con- 
struction of  a  railroad  in  the  adjacent  street.     Fulton  v.  Short  Route  Co., 
85  Ky.,  640;   J.,  M.  &  I.  R.  Co.  v.  Esterle,  13   Bush,  667;    E.,  L.  &  B.  S.  R. 
Co.  v.  Combs,  10  Bush.,  382;  and  see  Cornwall  v.  L.  &  N.  R.  Co.,  87  Ky.,  72. 

4.  Corporation  may  abandon  the  purpose  of  taking  property  which  it 
has  had  condemned  for  its  use  without  incurring  any  liability  to  pay  the 
damages  awarded.     Mention  v.  L.,  St.  L.  &  T.  R.  Co.,  90  Ky.,  491. 

5.  Necessity  and  public  use  are  conditions  precedent  to  the  right  to 
condemn  land.     Tracy  v.  E.  L.  &  B.  S.  R.  Co.,  80  Ky.,  259. 

6.  The  general  law  (act  1882)  prescribing  the  mode  of  condemning 
land  repealed  the  provisions  of  the  charter  of  the  company  touching 
this  subject.     Tracy  v.  E.,  L.  &  B.  S.  R.  Co.,  85  Ky.,  270;  Chattoroi  R.  Co. 
v.  Klnner,  81  Ky.,  221. 

7.  Power  must  be  strictly  construed.     98  Ky.,  67. 

8.  Property  of  citizens  can  only  be  taken  for  public  use.     98  Ky.,  67. 

9.  City  cannot  condemn  for  railroad.     98  Ky.,  67. 

Report  of  commissioners ;  proceedings  upon.— Upon  the  ap- 
plication of  said  company,  and  upon  tiling  such  affidavits  as 
may  be  necessary,  the  clerk  of  said  court  shall  issue  process 
against  the  owners  to  show  cause  why  the  said  report  should 


806  EMINENT    DOMAIN. 

not  be  confirmed,  and  shall  make  such  orders  as  to  nonresi- 
dents and  persons  under  disability  as  are  required  by  the  civil 
code  of  practice  in  actions  against  them  in  the  circuit  court. 
Code  Ky.  1894,  §  837. 

Confirmation  of  report  at  appearance  term  if  not  ex- 

Cepted  to. — At  the  first  regular  term  of  the  county  court,  after 
the  owners  shall  have  been  summoned  the  length  of  time  pre- 
scribed by  the  civil  code  of  practice  before  an  answer  is  re- 
quired, it  shall  be  the  duty  of  the  court  to  examine  said  report, 
and,  if  it  shall  appear  to  be  in  conformity  to  this  law,  and  to 
the  extent  that  no  exceptions  have  been  filed  thereto  by  either 
party,  it  shall  confirm  said  report  as  against  the  owners  not  ex- 
cepting. Code  Ky.  1894,  §  838. 

Trial  of  exceptions ;  assessment  of  damages ;  appeal ;  when 

Company  may  take  possession.— When  exceptions  shall  be 
filed  by  either  party,  the  court  shall  forthwith  cause  a  jury  to 
be  empaneled  to  try  the  issues  of  fact  made  by  the  exceptions, 
and  each  juror  shall  be  allowed  one  dollar  per  day  for  his 
services,  to  be  taxed  as  cost.  In  assessing  the  damages  the  jury 
shall  be  governed  by  the  rule  prescribed  in  section  836  of  this 
law;  and,  upon  the  request  of  either  party,  may  be  sent  by  the 
court-,  in  charge  of  the  sheriff,  to  view  the  land  or  material.  If 
sufficient  cause  be  not  shown  for  setting  aside  the  verdict,  the  court 
shall  render  judgment  in  conformity  thereto,  and  shall  make 
such  orders  as  may  be  proper  for  the  conveyance  of  the  title 
upon  the  payment  of  the  damages  assessed.  Either  party  may 
appeal  to  the  circuit  court,  by  executing  bond  as  required  in 
other  cases,  within  thirty  days,  and  the  appeal  shall  be  tried 
de  nova  upon  the  confirmation  of  the  report  of  the  commis- 
sioners by  the  county  court,  or  the  assessment  of  damages 
by  said  court,  as  herein  provided,  and  the  payment  to  the 
owners  of  the  amount  due,  as  shown  by  the  report  of  the  com- 
missioners when  confirmed,  or  as  shown  by  the  judgment  of  the 
county  court.  When  the  damages  are  assessed  by  said  court, 
and  all  cost  adjudged  to  the  owner,  the  railroad  company  shall 
be  entitled  to  take  possession  of  said  land  and  material,  and  to 
use  and  control  the  same  for  the  purpose  for  which  it  was  con- 


GENERAL    POWERS    OF    THE    N.,    C.    A    ST.    L.     RY.  807 

demned,  as  fully  as  if  the  title  had  been  conveyed  to  it.  But, 
when  an  appeal  shall  be  taken  from  the  judgment  of  the  county 
court  by  the  company,  it  shall  not  be  entitled  to  take  posses- 
sion of  the  land  or  material  condemned  until  it  shall  have  paid 
into  the  court  the  damages  assessed  and  all  costs.  All  money 
paid  into  court,  under  the  provisions  of  this  law,  shall  be  re- 
ceived by  the  clerk  of  the  court,  and  held  subject  to  the  order 
of  the  court,  for  which  he  and  his  sureties  on  his  official  bond 
shall  be  responsible  to  the  persons  entitled  thereto.  Code  Ky. 
(1894),  §  839. 

Possession  of  land  condemned  cannot  be  taken  until  the  damage  as- 
sessed has  been  actually  paid  to  the  owner.  Carrlco  v.  Colvln,  92  Ky. , 
342;  87  Ky.,  267. 

Appeal,  how  taken ;  costs  on  appeal,  by  whom  to  be  paid.— 

The  appeal  from  the  county  court  shall  be  taken  by  tiling  with 
the  clerk  of  the  court  to  which  the  appeal  lies,  a  statement  of 
the  parties  to  the  appeal,  and  a  transcript  of  the  orders  of  the 
county  court,  and  thereupon  the  said  clerk  shall  certify  to  the 
clerk  of  the  county  court  that  said  appeal  has  been  tiled,  and 
the  clerk  of  the  county  court  shall  immediately  transfer  the 
original  papers  to  the  clerk  of  the  court  to  which  the  appeal  is 
pending;  and  if  the  owner  on  his  appeal  shall  fail  in  the  circuit 
court  to  increase  the  amount  of  damages  awarded  in  the  county 
court,  he  shall  pay  all  the  costs  of  the  appeal;  if  the  damages 
are  increased  in  the  circuit  court,  the  other  party  shall  pay  all 
the  costs  of  the  appeal.  The  same  rule  as  to  payment  of  costs 
shall  apply  when  the  appeal  is  prosecuted  by  the  party  seeking 
to  condemn  land.  CodeKy.,  1894,  §840. 

1.  Appeal;  costs;  practice. — The  court  of  appeals  has  jurisdiction 
of  an  appeal  from  the  judgment  of  the  circuit  court  in  proceedings  for 
the  condemnation  of  Land.     Trtwy  v.  E.,  L.  A  B.  S.  R.   Co.,  78  Ky.,  309; 
and  P.  &  O.  T.  Co.  v.  Bobb,  88  Ky.,  226;  as  to  practice  see  Tracy  v.  E.,  L. 
A  B.  S.  R.  Co.,  80  Ky.,  259;  as  to  costs  see  L.,  St.  L.  &  T.  R.  Co.  v.  Barrett, 
91  Ky.,  487. 

2.  It  is  not  necessary  that  a  petition  in  the  form  prescribed  by  the 
code  shall  be  filed,  but  the  petition,  or  statement,  filed  by  the  corpora- 
tion, must  contain  a  description  of  the  land  and  averments  that  it  is  nec- 
essary for  its  use,  and  that  it  has  been  unable  to  contract  with  the  owner 
for  it.     P.  A  O.  T.  Co.  v.  Bubb,  88  Ky.,  226. 


808  FENCES,    CATTLE    GUARDS,    ETC. 


CHAPTER  LXVIII. 

FENCES—CATTLE    GUARDS— WHAT  ARE  LEGAL  — HOW,    WHEN 
AND  IN  WHAT  STATES  TO  BE  ERECTED. 

[in  Tennessee.]    Railroads  must  fence  track  or  be  liable  for 

Stock  injured. — There  is  no  law  in  Tennessee  affirmatively 
requiring  railroads  to  fence  their  tracks.  By  acts  of  1891,  ch. 
101,  however,  they  are  rendered  absolutely  liable  for  all  stock 
killed  or  injured  unless  their  tracks  are  inclosed  with  good  and 
lawful  fences  and  good  and  sufficient  cattle  guards.  The  same 
act  gives  them  absolute  exoneration  from  liability  where  legal 
fences  and  cattle  guards  are  erected.  See  acts  Tenn.  1891, 
ch.  101;  code  Tenn.  (Shannon's),  §1597,  et  seq.  ^j 

1.  Constitutionality  of  act. — The  supreme  court  held  this  act  consti- 
tutional and  valid  in  all  its  parts.     7  Pick.  (Tenn.),  489. 

2.  Complete  exoneration  from  liability,  if  track  fenced. — In  the  case 
of  Railroad  v.  Russell  the  supreme  court  held  that  "  the  second  section 
of  the  acts  of  1891,  ch.  101,  makes  railroad  companies  absolutely  liable 
in  damages  for  all  live  stock  killed  or  injured  by  moving  trains  upon 
unfenced  tracks,  and  section  3  of  same  act  gives  them  complete  exonera- 
tion from  liability  where  their  tracks  are  fenced.     These  are  weighty 
inducements  to  the  end  sought  by  the  legislature,  the  one  being  in  the 
nature  of  punishment  for  a  failure  to  fence,  and  the  other  in  the  nature 
of  a  reward  for  fencing."     8  Pick.  (Tenn.),  108.     See  also  7  Pick.  (Tenn.), 
489. 

3.  Fencing  in  cities  and  around  depots. — Railroad  companies  are  not 
required  to  fence  their  depots  and  stations,  or  the  ground  immediately 
surrounding  same,  or  the  crossings  of  public  highways,  or  such  portions 
of  their  tracks  traversing  towns  or  cities  as  are  intersected  by  public 
streets;  but  the  mere  fact  that  the  track  is  situated  within  the  limits  of 
an  incorporated  town  does  not,  without  more,  excuse  the  company  from 
the  statutory  duty  to  fence  it.     When  the  live  stock  enters  upon  the 
track  where  it  is  not  required  to  be  fenced,  and  pursues  it  until  struck  by 
a  train  at  a  point  where  the  track  is  required  to  be  fenced,  but  is  not 
fenced  the  company  is  not  liable  under  this  statute,  in  the  absence  of 
other  negligence.      But  if   it  has  not  constructed  good  and  sufficient 
cattle  guards  ou  the  line  separating  that  portion  which  is  not  required 
to  be  fenced  from  that  which  must  be,  and  the  stock  pursues  the  track 
and  collides  with  the  train,  the  company  is  liable.     10  Pick.  (Tenn.),  451. 


tiENEKAL    POWERS   OF   THE    N.,    C.    A   ST.    L.    KY. 

4.  It  is  the  point  where  the  stock  gets  upon  the  track  and  not  the 
place  where  injured  that  fixes  liability.  10  Pick.  (Ti-nn.i.  451;  30  111., 
451;  73  Mo.,  465;  7  Am.  &  Enjj.  R.  R.  C.,  558. 

What  are  lawful  fences?— The  following  are  in  Tennessee: 

1.  Stone. — A  substantial  stone  fence  or  wall,  three  and  one- 
half  feet  high.     Acts  Tenn.,   1877,  ch.   35,  §  2;  Code  Tenn. 
[Shannon's],  §  2980. 

2.  Plank  and  post  and  rail. — A  post  and  plank,  or  post  and 
rail  fence  four  feet  high.     Id. 

3.  Rail. — A  common  worm  or  crooked  rail  fence  five  feet 
high.     Id. 

4.  Bank.  — Every  bank  or  other  means  used  as  a  fence,  or 
part  of  a  fence,  equivalent,  as  an  obstruction  to  stock,  to  either 
of  the  three  classes  of  fence  above  named.     Id. 

5.  Wire. — Any  inclosure  made  by  nailing  fast  two  sound 
planks,  each  not  less  than  six  inches  wide,  to  posts  set  firmly 
in  the  ground  not  more  than  eight  feet  apart,  the  bottom  plank 
to  be  not  more  than  three  inches  from  the  ground,  and  the 
second  plank  from  the  ground  not  more  than  four  inches  from 
the  first;  and  then  by  stretching  not  less  than  four  strands  of 
barbed  wire  tightly  between  said  posts  above  the  planks,  the 
topmost  wire  to  be  not  less  than  four  and  a  half  feet  from  the 
ground,  and  the  bottom  wire  to  be  four  inches  from  the  top- 
most plank;    the  next  wire  from  the  bottom  one  to  be  nine 
inches  from  the  topmost  plank,  and  the  third  wire  from  the 
bottom  to  be  twenty-one  inches  from  the  topmost  plank,  the 
above  distance  as  nearly  as  practicable.     Acts  Tenn.  1883,  ch. 
46,  §  2. 

6.  Osage  orange. — Bois  d'arc  or  osage  orange  fences,  wholly 
of  bois  d'arc  or  osage  orange,  or  in  part  of  bois  d'arc  or  osage 
orange,  and  in  part  of  wire  or  other  material,  at  least  four 
feet  high,  and  at  least  eighteen  inches  across  the  top  and  suffi- 
ciently close  to  prevent  stock  of  all  kinds  from  passing  through. 
Id.     Shannon's  Code  Tenn.,  §  2980. 

7.  Wire;  for  home*,  cattle,  and  mules. — The  following  shall 
be  sufficient,  and  be  deemed  a  lawful  fence  only  as  to  cattle, 
horses,   and    mules:     Any  inclosure  made    by   stretching    not 


810  FENCES,    CATTLE    GUARDS,    ETC. 

less  than  five  strands  of  barbed  wire  tightly  between  posts 
firmly  set  in  the  ground,  or  between  growing  trees  and  posts 
firmly  set  in  the  ground,  not  more  than  twenty  feet  apart;  the 
topmost  wire  not  less  than  four  and  a  half  feet  from  the  ground, 
the  bottom  wire  not  less  than  six  inches,  and  the  next  to  the 
bottom  wire  not  less  than  fifteen  inches  from  the  ground.  Code 
Tenn.  (Shannon's),  §  2981. 

8.  Three-wire,  plank,  or  slat  fence. — In  addition  to  the  fences 
in  §  2980,  defined  to  be  lawful  fences  (which  are  also  hereby 
declared  to  be  lawful  fences),  the  following  shall  also  be  a  law- 
ful fence,  to  wit:  A  fence  built  on  good- sized,  substantial 
posts,  set  firmly  in  the  ground,  not  more  than  nine  feet  apart. 
Said  fence  shall  consist  of  three  barbed  wires,  or  three  planks, 
or  three  slats  running  horizontally  and  fastened  firmly  to  said 
posts,  the  first  to  be  eighteen  inches  from  the  ground,  and  the 
second  and  third  eighteen  inches  from  the  first  and  second, 
respectively,  counting  from  the  center  of  each.  Said  fence 
may  consist  entirely  of  wire  strands,  or  of  planks,  or  of  slats, 
or  it  may  be  composed  of  a  wire,  plank,  and  slat.  Acts  Tenn. 
1891,  ch.  92;  code  Tenn.  (Shannon's),  §2982. 

The  supreme  court  of  Tennessee  held,  in  an  oral  opinion  delivered  by 
Judge  McAlister,  that  all  eight  of  the  foregoing  class  of  fences  applied 
to  railways. 

County  court  to  adopt  standard.— The  county  courts  of  this 

state,  at  their  respective  January  terms,  shall  have  power  to 
adopt  for  their  said  counties,  respectively,  a  standard  lawful 
fence  as  the  same  is  defined  in  §  2980,  or  as  is  enacted  and  pre- 
scribed in  §  2982,  but  said  order  so  adopting  said  fence  shall 
be  spread  on  the  minutes,  and  said  standard  fence,  when  so 
adopted,  shall  be  the  lawful  fence  for  said  county  for  the  next 
ensuing  year.  Code  Tenn.  (Shannon's),  §2983;  acts  Tenn. 
1891,  ch.  92,  sec.  2. 

Cattle  guards  on  unf  enced  tracks  required.— Each  and  every 

railroad  company  whose  unfenced  track  passes  through  a  field 
or  inclosure  is  hereby  required  to  place  a  good  and  sufficient 
cattle  guard  or  stop  at  the  points  of  entering  such  field  or 


GENERAL    POWERS   OF   THE    N. ,    C.    A    ST.    L.    RY.  v  1  1 

inclosure,  and  keep  the  same  in  good  repair.  Acts  Tenn.  1889, 
ch.  248;  code  Tenn.  (Shannon's),  §  1595. 

As  to  stock  gaps  or  cattle  guaids  at  private  and  public  crossings,  see 
p.  710,  et  »#/.,  herein. 

Applies  tO  fields  hereafter  Opened.— In  case  a  field  or  in- 
closure through  which  such  unfenced  railroad  track  passes  shall 
be  enlarged  or  extended,  or  the  owner  of  the  land  over  which 
such  unfenced  track  passes  shall  open  a  field  so  as  to  embrace 
the  track  of  such  railroad,  such  railroad  company  is  hereby  re- 
quired to  place  good  and  sufficient  cattleguards  or  stops  at  the 
margin  of  such  inclosure  of  fields,  and  keep  the  same  in  repair; 
Provided,  Such  owner  shall  give  the  nearest  or  most  accessible 
agent  of  such  company  thirty  days'  notice  of  such  change. 
Code  Tenn.  (Shannon's),  §  1596  ;  acts  Tenn.  1889,  ch.  248, 
sec.  2. 

Liability  for  failure. — The  company  is  liable  for  all  damages  sus- 
tain by  anyone  by  reason  of  the  neglect  or  refusal  to  comply  with  the 
above  two  sections  ;  Provided,  it  be  not  shown  that  the  opening  of  such 
field  was  made  capriciously  and  with  intent  to  annoy  and  molest  the 
company.  Acts  Tenn.  183'J,  ch.  248,  sec.  3;  code  Tenn.  (S.),  %  1597. 

ALABAMA  LAW  AS  TO  FENCES. 

[In  Alabama].    Railroads  required  to  fence,  when  ;  liability 

for  Stock  injured. — When  such  [railroad]  commissioners  deem 
it  necessary  that  any  railroad  in  this  state,  or  any  portion  thereof, 
should  be  fenced,  they  shall  notify  the  person  or  corporation 
operating  such  railroad  of  their  conclusion  ;  and,  IIJXMI  failure, 
after  reasonable  notice,  to  fence  such  railroad,  or  the  portion 
thereof  designated,  the  person  or  corporation  operating  such 
railroad  shall  be  liable  in  damages  for  the  value  of  any  stock 
injured  or  killed  upon  the  portion  of  the  line  so  designated  to 
be  fenced,  whether  with  or  without  negligence  ;  but  if  the 
fence  is  erected  in  conformity  to  the  notice,  no  liability  shall 
attach  for  slock  injured  or  killed  upon  the  portion  of  the 
line  so  fenced,  unless  such  injury  or  killing  was  committed 
willfully.  Code  Ala.  1896,  §  3495. 


812  FENCES,    CATTLE    GUARDS,    ETC. 

What  are  lawful  fences  in  Alabama.— "All  inciosures  and 

fences  must  be  made  at  least  five  feet  high,  and  if  made  of 
rails,  the  rails  not  more  than  four  inches  apart  from  the  ground 
to  the  height  of  every  two  feet,  or,  if  made  of  palings,  the 
palings  not  more  than  three  inches  apart,  or  if  made  with  a 
ditch,  such  ditch  must  be  four  feet  wide  at  the  top,  and  the 
fence,  of  whatever  material  composed,  at  least  five  feet  high 
from  the  bottom  of  the  ditch  and  three  feet  high  from  the  top 
of  the  bank,  and  so  close  as  to  prevent  stock  of  any  kind  from 
getting  through;  but  a  rail  fence  five  feet  high,  with  the  rails 
not  more  than  eighteen  inches  apart  from  the  ground  to  the 
height  of  every  three  feet,  shall  be  a  lawful  fence  so  far  as 
cattle,  horses,  and  mules  are  concerned.  Code  Ala.  1896, 
§2110. 

Fences  of  three  or  more  wires  lawful  as  to  mules,  horses, 

and  Cattle. — A  fence  made  of  three  or  more  wires  securely 
fastened  to  trees  or  posts  not  more  than  eight  feet  apart,  the 
wires  being  not  more  than  fifteen  inches  apart  and  the  top  wire 
at  least  four  feet  from  the  ground,  is  a  lawful  fence  so  far  as 
concerns  mules,  horses,  and  cattle.  Code  Ala.  1896,  §2111. 

Fences  of  seven  or  more  wires  lawful  as  to  all  live  stock.— 

"A  fence  made  of  seven  or  more  wires,  securely  fastened  to 
trees  or  posts  not  more  than  eight  feet  apart,  the  first  four 
wires  being  of  four-inch  barb  and  not  over  four  inches  apart, 
commencing  with  first  wire  four  inches  from  the  ground,  the 
fifth  wire  not  over  six  inches  from  the  fourth,  the  sixth  wire 
not  over  eight  inches  from  the  fifth,  and  the  seventh  wire 
fifteen  inches  from  the  sixth,  is  a  lawful  fence  as  against  all 
stock  whatsoever. "  Code  Ala.  1896,  §2112. 

Cattle  guard  must  be  repaired  in  Alabama,  when.— Every 

person  or  corporation  operating  a  railroad  must  put  cattle 
guards  upon  such  railroad,  and  keep  the  same  in  good  repair, 
whenever  the  owner  of  the  land  through  which  the  road  passes 
shall  make  demand  upon  them  or  their  agents  and  show  that 
such  guards  are  necessary  to  prevent  the  depredation  of  stock 
upon  his  land.  Code  Ala.  1896,  §  3480. 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    BY.  813 


GEORGIA  LAW  AS  TO  FENCES. 

[In  Georgia].      Duty  Of  railroads  as  to  fencing.— There  is 

no  general  law  in  Georgia  requiring  railroads  to  fence  their 
tracks. 

1.  Km  see  84  1 1:1..  256,  where  railroad  held  liable,  after  purchasing 
right  of  way  and  taking  away  protecting  fence,  for  damages  by  cattle; 
also  84  Ga.,  329,  where  railroad  held  liable  after  condemning  right  of 
way  and  removing  stock  gap. 

2.  Stock  gaps  and  cattle  guards. — For  duty  of  railroad  company  as  to 
putting  in  cattle  guards  and  stock  gaps,  see  p.  717,  herein. 

3.  Same. — Under  §2243  of  Code  Ga.,  landowner  must  show  necessity 
for  cattle  guards  before  he  can  recover.     104  Ga.,  148. 

4.  Same. — Railways  are  not  required  to  build  cattle  guards,   save  at 
public  roads  or  private  ways  legally  established.     104  Ga. ,  602. 

5.  Same.  —  Nor  are  they  required  to  maintain  them  as  to  one  not  own- 
ing the  land.     100  Ga.,  600. 

What  are  legal  fences  in  Georgia.— "  All  fences,  or  inclos- 

ures,  commonly  called  worm  fences,  shall  be  five  feet  high, 
with  or  without  being  staked  and  ridered,  and  from  the  ground 
to  the  height  of  three  feet  the  rails  shall  not  be  more  than  four 
inches  apart.  All  paling  fences  shall  be  five  feet  from  the 
ground,  and  the  pales  not  more  than  two  inches  apart.  Code 
Ga.,  1895;  §1762. 

1.  Section  cited  as  to  a  barbed-wire  fence  with  two  strands  of  wire. 
62  Ga.,  679,  684. 

2.  Average  height  of  five  feet  not  sufficient  if  too  low  at  some  places. 
68  Ga.,  288. 

3.  No  distinction  as  to  different  kinds  of  animals.     68  Ga.,  288. 

4.  Law,  general  and  uniform,  and  cannot  be  varied  by  special  act.     84 
Ga.,  804,  812. 

Same.  IndOSUre  by  ditches,  etc.— Any  inclosure  made  by 
means  of  a  ditch  or  trench  shall  be  three  feet  wide  and  two  feet 
deep,  and  if  made  of  both  fence  and  ditch,  the  latter  shall  be  four 
feet  wide,  and  the  fence  five  feet  high  from  the  bottom  of  the 
ditch.  CodeGa.,  1895;  §1763. 

Section  cited  as  to  fence  of  wire  three  feet  high  and  with  barbs.  63 
Ga.,  679,  684. 

Same.  Wire  fence. — The  following  inclosure  shall  be  deemed 
and  held  to  be  a  lawful  fence.  Any  inclosure  made  by 


814  FENCES,  CATTLE  GUARDS,  ETC. 

stretching  not  less  than  six  horizontal  strands  of  barbed 
wire  between  posts  firmly  set  in  the  ground  or  between  growing 
trees  not  more  than  ten  feet  apart,  the  bottom  wire  to  be  not 
more  than  four  inches  from  the  ground,  the  next  wire  to  be 
not  more  than  four  inches  from  the  first,  the  next  wire  to  be 
.not  more  than  six  inches  from  the  second,  the  next  wire  to  be 
not  more  than  eight  inches  from  the  third,  the  next  wire  to  be 
not  more  than  ten  inches  from  the  fourth,  and  the  topmost 
wire  to  be  not  less  than  four  and  a  half  feet  from  the  ground, 
with  a  plank  strip  not  less  than  four  inches  in  width  either 
above  or  below  the  topmost  wire.  Code  Ga.  1895,  §  1764. 

Same.  Not  applicable  to  "  no  fence  "  counties. — The  provi- 
sions of  the  preceding  section  shall  not  apply  to  any  county  in 
this  state  now  having,  or  that  may  hereafter  have,  in  operation 
the  "no  fence"  or  stock  law.  Code  Ga.  1895,  §  1765. 

Same.    When  water  courses  are  deemed  fences. — All  water 

courses  that  are,  or  have  been  navigable,  as  far  as  navigation 
has  ever  extended  up  said  streams,  shall  be  deemed  and  con- 
sidered fences,  whenever  by  reason  of  freshet,  or  otherwise, 
fences  cannot  be  kept  on  said  streams,  and  shall  be  subject  to 
the  rules  applicable  to  other  fences.  Code  Ga.  1895,  §  1771. 

Same.    Lines  of  county  and  district  fences,  when.— In  each 

and  every  county  and  district  in  this  state  the  boundary  lines  of 
each  lot,  tract,  or  parcel  of  land  in  said  counties  and  districts 
shall  be,  and  the  same  are  hereby,  decared  a  lawful  fence; 
Provided,  That  this  section  shall  not  become  operative  in  any 
county  or  district  in  this  st  ite  which  has  not  heretofore  abol- 
ished or  removed  fences,  either  by  a  vote  of  the  people  or  in 
pursuance  of  legal  or  illegal  legislative  action,  or  which  has  not 
heretofore  abolished  or  removed  fences  by  an  election,  although 
not  held  at  the  time  prescribed  in  act  approved  September  5, 
1883,  unles  by  an  election  and  in  the  manner  provided  for  in 
§  1777.  Code  Ga.  1895,  §  1772. 

This  and  following1  sections  not  in  part  materia  with  \\  2321  and  2322 
as  to  damages  by  railroads.  71  Ga.,  461. 

The  stock  law  may  be  considered  by  the  jury  in  passing  on  the  neg- 
ligence of  both  plaintiff  and  railroad.  71  Ga.,  461. 

Act  of  November  26,  1890,  a  general  law  and  constitutional.    92  Ga.,  1. 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     815 

When  act  of  November  26,  1890,  applies,  live  stock  running  at  large 
on  premises,  other  than  owner's,  could  be  taken  up  and  impounded.  02 
Ga.,  1,  7. 

Stock  gaps  on  W.  &  A.  Railroad ;  right  of  landowners  to 

build. — "All  persons  in  this  state  owning  land  through  which 
the  Western  &  Atlantic  Railroad  passes  shall  have  i>ermission 
to  build  stock  gaps  on  said  road  when  the  line  of  their  fences 
may  cross  the  same,  and  shall  have  the  privilege  of  joining 
their  fences  to  such  stock  gaps;  Provided,  Said  landowners  shall 
not  improperly  interfere  with  the  bed  of  said  road,  or  render 
it  less  safe,  or  interfere  with  the  running  of  the  trains  thereon." 

1.  For  other  laws  of  Georgia  requiring  the  erection  of  stock  gaps,  see 
pp.  717,  718,  herein. 

2.  The  Western  &  Atlantic  Railroad  liable  for  killing  stock  as  any 
other  company.     Code,  Ga.,  1895,  §2252. 

KENTUCKY  LAW  AS  TO  FENCES. 

[In  Kentucky.]    Railroad  company  required  to  fence  as 

Other  landowners. — That  when  any  corporation,  or  person 
owning  or  controlling  a  railroad  in  this  commonwealth,  owns 
right  of  way,  and  its  railroad  shall  have  been  constructed  and 
in  operation  for  the  period  of  five  years,  the  same  is  hereby 
put  on  equal  terms  and  obligations  with  other  landowners  own- 
ing adjoining  lands  in  this  commonwealth.  Ky.  code  (1894), 
§  1789;  acts  Ky.  1893,  approved  February  25. 

1.  The  act  of  1886  requiring  railroads  to  erect  fences  was  held  un- 
constitutional.    91  Ky.,  175. 

2.  Sections  810,  811,  and  812  of  the  code  Ky.  1894,  as  to  injuring  stock, 
do  not  apply  to  railroads  which   inclose  their  entire  line  of  road  with 
good  and  lawful  fences  and  good  and  sufficient  cattle  gaps  and  keep  the 
same  in  repair.     Code  Ky.  1891,  §813. 

Fence  to  be  constructed  in  Kentucky  by  railroad  and  land- 
owner.— That  every  such  corporation  or  person  owning  or 
controlling  and  operating  a  railroad  in  this  commonwealth,  and 
owning  right  of  way,  shall  construct  and  maintain  a  good  and 
lawful  fence  on  one-half  of  the  distance  of  the  division  line 
between  such  rights  of  way  and  the  adjoining  lands,  except  as 
is  hereinafter  provided;  and  that  every  owner  of  land  or  lands 


816  FENCES,    CATTLE    GUARDS,    ETC. 

adjoining  any  rights  of  way  of  such  corporation  or  persons,  as 
aforesaid,  shall  construct  and  maintain  a  good  and  lawful  fence 
on  one-half  the  distance  of  the  division  line  between  such  land 
or  lands  and  such  rights  of  way,  except  as  is  hereinafter  pro- 
vided. Ky.  code  (1894),  §  1790. 

When  one  party  has  built  in  Kentucky  other  may  be  required 

to  build  ;  notice ;  penalty. — That  when  either  party,  either  the 
corporation  or  person  owning  or  controlling  and  operating 
such  railroad,  or  the  owner  of  lands  adjoining  the  right  of 
way  thereof,  has  constructed  or  does  construct  a  good  and  law- 
ful fence  on  the  division  line  between  such  right  of  way  and 
the  lands  adjoining  the  same  for  one-half  the  distance  of  said 
line,  and  the  other  party  has  not  constructed  such  fence  on  said 
line  for  half  the  distance  thereof,  nor  has  paid  a  sum  sufficient 
to  construct  such  fence,  or  any  sum  by  agreement  in  lieu 
thereof,  the  party  who  has  constructed  such  fence,  as  herein 
provided,  shall,  in  writing,  notify  the  party  in  default  of  the 
length  of  the  division  line  between  them,  and  that  he  (the 
party  serving  such  notice)  has  constructed  a  good  and  lawful 
fence  on  said  division  line  for  one-half  the  distance  thereof; 
and  it  shall  be  the  duty  of  the  party  on  whom  such  notice  is 
served,  and  he  is  hereby  required,  to  construct  a  good  and 
lawful  fence  on  the  other  half  of  the  distance  of  said  division 
line,  within  four  months  after  date  of  receiving  said  notice. 
Where  the  corporation,  or  person  owning  or  controlling  and 
operating  the  railroad  is  in  default,  such  notice  may  be  served 
on  the  nearest  station  agent  thereof.  If  the  party  on  whom 
such  notice  is  served  fail  to  construct  such  fence  as  is  herein 
provided,  and  within  the  time  prescribed,  such  party  so  in  default 
shall  be  fined  one  dollar  for  each  and  every  day  after  the  expira- 
tion of  the  said  period  of  four  months  during  which  such  fence 
shall  not  have  been  constructed.  Said  fines  may  be  recovered 
by  warrant  in  the  name  of  the  commonwealth  of  Kentucky 
before  any  court  of  competent  jurisdiction.  Kentucky  Code 
(1894),  §  1791. 

There  being  no  common  law  obligation  for  a  railroad  to  build  a  fence 
along  its  line,  but  it  being  obliged  by  statute  to  build  half  of  the  fence 


GKNKKAL  TOWERS  OF  THE  X.,  C.  A  ST.  L.  RV.     817 

after  notice,  as  in  the  case  of  persons  owning  adjoining  lands,  damages 
cannot  be  recovered  against  a  railroad  for  failure  to  construct  a  fence, 
though  it  has  refused  to  do  so  after  notice,  where  plaintiff  does  not  aver 
a  construction  of  or  offer  to  construct  his  half  of  the  fence.  13  R.,  436. 

Exemption  from  provisions  of  this  law.— That  the  pro- 
visions of  this  act  shall  not  apply  in  any  case  wherein  any  cor- 
poration or  person  owning  or  controlling  and  operating  such 
railroad  has  furnished  the  material  to  construct  a  fence,  or  con- 
demned its  right  of  way,  and  paid  the  owner  or  his  vendor 
damages,  in  the  estimation  of  which  the  cost  of  fencing  was 
taken  into  consideration,  nor  be  so  construed  as  to  require  such 
corporation  or  person  as  aforesaid  to  build  any  fence  along  the 
line  through  any  town  or  city,  or  across  any  public  or  private 
passway;  nor  shall  such  corporation  or  person  be  required  to 
construct  such  fences  as  hereinbefore  provided  through  unim- 
proved or  uncultivated  lands  until  the  owner  of  such  lands 
shall  have  previously  enclosed  such  lands  on  three  sides  with 
sufficient  fences,  or  unless  such  lands  be  so  enclosed  with  fences 
and  a  river,  creek,  bluff,  or  such  other  natural  barrier  as  will 
prevent  the  egress  of  stock.  Kentucky  Code  (1894),  $  1792. 

Cattle  guard ;  where  to  be  erected  in  Kentucky.— That  all 

corporations  and  persons  owning  or  controlling  and  operating 
railroads  as  aforesaid  shall  erect  and  maintain  cattle-guards  at 
all  terminal  points  of  fences  constructed  along  their  lines, 
except  at  points  where  such  lines  are  not  required  to  be  fenced 
on  both  sides,  and  at  public  crossings.  But  where  there  is  a 
private  pass  way  across  said  railroad  the  landowner  for  whose 
benefit  it  is  kept  open  shall  bear  one-half  of  the  expense  of 
cattle-guards  and  gates,  the  former  to  erect  the  gates,  the  cor- 
poration or  person  operating  the  railroad  to  erect  the  cattle- 
guards.  Kentucky  Code  (1894),  §  1793. 

Landowner  in  Kentucky,  who  has  built  entire  fence,  may 

remove  his  part ;  proviso. — That  any  landowner  who  has  al- 
ready built  a  lawful  fence  along  the  whole  distance  of  the 
division  line  between  his  land  and  the  right  of  way  of  any  rail- 
road, shall  have  the  right  (in  the  absence  of  any  agreement  to 
the  contrary),  after  giving  three  months'  notice  to  the  corpora- 
tion or  person  operating  said  railroad  (to  be  served  on  the 

52 


818  FENCES,  CATTLE  GUARDS,  ETC. 

nearest  station  agent)  of  such  intention  to  move  one-half  of 
said  fence;  Provided,  however,  He  shall  not,  in  removing  such 
part  of  his  fence,  cause  such  corporation  or  person  aforesaid  to 
erect  water  gaps,  and  to  fence  at  points  where  the  grade  of  the 
roadbed  is  of  such  a  character  as  may  render  fencing  unneces- 
sary. Ky.  code  (1894),  §  1794. 

Lawful  fence,  what  constitutes  in  Kentucky ;  agreement 

Of  parties. — That,  for  the  purpose  of  this  act,  any  fence  con- 
structed of  substantial  posts,  well  set,  not  less  than  two  feet  in 
the  ground  and  at  no  greater  distance  apart  than  ten  feet,  with 
wire  not  less  than  four  feet  and  a  half  high,  consisting  of  seven 
strands,  shall  be  held  to  be  a  good  and  lawful  fence;  but  noth- 
ing herein  shall  be  construed  to  prevent  parties  from  erecting 
any  other  class  of  lawful  fence.  Ky.  code  (1894),  §  1795. 

By  \  1780  of  the  code  of  Ky.  (1894),  "  Every  strong  and  sound  fence  of 
rails,  or  plank,  or  wire,  or  wire  and  plank,  or  iron,  or  of  hedge,  four  and 
one-half  feet  high,  and  being  so  close  that  cattle  cannot  creep  through, 
or  made  of  stone  or  brick,  four  and  one-half  feet  high,  or  a  ditch  three 
feet  deep  and  three  feet  broad,  with  a  hedge  two  feet  high,  or  a  rail, 
plank,  stone,  smooth  or  barbed  wire,  or  brick  fence  two  and  one-half 
feet  high  on  the  margin  thereof,  the  hedge  or  fence  being  so  close  that 
cattle  cannot  creep  through,  shall  be  deemed  a  lawful  fence.  Code  Ky. 
(1894),  I  1780. 

Law  not  applicable  to  owner  who  has  received  compensation. 

—That  this  act  shall  not  apply  to  any  land  where  the  owner  or 
his  vendor  has  received  compensation  for  fencing  the  same. 
Kentucky  Code,  1894;  §  1796. 

Company  shall  erect  entire  fence  in  Kentucky ;  when  right 

Of  Way  given.— That  when  the  owner  of  any  land  or  lands,  or 
any  immediate  or  remote  grantor  or  vendor  of  such  owner,  has 
given  to  the  corporation  or  person  owning  or  controlling  and 
operating  any  railroad  a  right  of  way  through  such  land  or 
lands  free  of  charge,  then  the  entire  fencing  on  the  division 
lines  between  such  lands  and  the  right  of  way  of  such  railroad 
shall  be  done  by  and  at  the  cost  of  the  corporation  or  person 
owning  or  controlling  and  operating  such  railroad,  said  fencing 
to  be  done  as  required  by  this  act.  Kentucky  Code,  1894; 
§  1797. 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     819 

Parties  may  agree  in  Kentucky  concerning  fences.— 

That  nothing  in  this  act  shall  be  construed  as  preventing  corpo- 
rations, or  persons  owning  or  controlling  and  operating  rail- 
roads, and  owners  of  land  adjoining  such  rights  of  way,  from 
entering  into  contracts  for  the  construction  of  fences  of  the 
character  contemplated  by  this  act;  and  lawful  fences  con- 
structed under  such  contracts  shall  be  a  sufficient  compliance 
with  the  provisions  hereof.  Kentucky  Code,  1894;  §  1798. 

Fences  between  parallel  railroads  or  turnpikes  in  Ken- 
tucky.— That  where  two  railroad  companies  adjoin  lands  or 
right  of  ways,  or  a  railroad  company  and  a  turnpike  company 
adjoin  land  or  right  of  ways,  running  parallel  with  no  tillable 
or  grazing  lands  between  their  right  of  ways,  the  railroad  com- 
pany shall  not  be  required  to  build  any  fence  along  its  side 
next  to  said  pike  or  railroad,  unless  the  turnpike  or  other  rail- 
road company  has  Hrst  built  its  half  along  said  division  line. 
Kentucky  code,  1894;  §  1799. 

StOCk  gaps  in  Kentucky.— See  p.  720,  herein. 


CHAFFER  LXIX. 

FREIGHT    CHARGES— WHAT    MAY     BE    CHARGED— WHAT    ON 

BRANCH   ROADS— DISCRIMINATIONS— SALE   OF 

FREIGHT  FOR   CHARGES. 

What  rates  may  be  charged;  charter  provision.— [in  Ten- 
nessee.] Section  14  of  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  charter  provides  that  "the  company  shall  have  the 
exclusive  right  of  transportation  or  conveyance  of  persons, 
goods,  merchandise,  and  produce  over  the  said  railroad  by 
them  to  be  constructed;  Provided,  That  the  charge  of  trans- 
portation or  conveyance  shall  not  exceed  thirty-live  cents  per 
one  hundred  pounds  on  heavy  articles,  and  ten  cents  per  cubic 
foot  on  articles  of  measurement  for  every  hundred  miles,  and 
five  cents  a  mile  for  every  passenger;  And  provided  alto, 
That  said  company  may,  when  they  see  tit,  farm  out  their 


820  FREIGHT    CHARGES. 

rights  of  transportation  on  said  road,  subject  to  the  rates  above 
mentioned."  See  p.  9  herein. 

This  section,  however,  simply  guarantees  the  company  the 
right  to  charge  for  freight  and  passengers.  It  does  not  guar- 
antee or  authorize  any  particular  rates,  but  simply  prohibits  it 
from  charging  more  than  the  rates  therein  set  out.  The  su- 
preme court  of  Tennessee  has  held  that  < '  its  intent  was  not  to 
proportion  the  charges  by  any  unit  of  distance,  but  to  fix  a 
maximum  beyond  which  the  company  could  not  go,  and  to 
leave  the  tariff  of  charges  within  that  limit  to  the  company, 
subject  to  the  rule  of  the  common  law,  that  charges  should  be 
reasonable,  and  to  the  regulating  power  of  the  courts  and  of 
the  legislature.  9  Lea  (Tenn).,  609;  128  U.  S.,  174-82; 
Book  32  L.  C.  P.  Co.,  377.  Hence  this  section  would  not 
protect  the  railway  from  the  control  of  any  legally  constituted 
state  railroad  commission. 

Railroad  commission. — By  acts  Tenn.  1897,  ch.  10,  p.  113,  a  railroad 
commission  was  created  in  order  to  secure  just  and  reasonable  rates,  and 
thus  prevent  unjust  discriminations.  See  act  itself  for  contents. 

May  charge  branch  roads,  however,  on  basis  of  twenty 

miles,  Whether  that  long  Or  not.— Section  40  of  the  charter  of 
the  Nashville,  Chatttanooga  &  St.  Louis  Railway,  p.  23,  herein, 
provides,  that  branches  may  be  built  to  connect  with  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  but  that  the  company 
shall  not  be  required  to  receive  any  car  from  such  branches 
without  receiving  payment  for  at  least  twenty  miles  transpor- 
tation. 

It  is  doubtful  whether  this  section  is  operative  now,  under  the  pres- 
ent law.  See,  also,  section  below. 

Railroads  must  receive  loaded  freight  cars  of  other  compa- 
nies without  charging  more  than  on  their  own  line.— Under 

the  general  law  every  railroad  company,  when  required,  shall 
receive  on  its  road  and  branches  the  full  loaded  freight  cars  of 
all  other  companies,  transmit  them  to  their  destination,  and 
return  them,  without  charging  for  the  transportation  of  the 
goods,  wares,  merchandise,  and  produce  therein  any  greater 
rate  of  freight  than  they  charge  for  similar  transportation  in 


<;KM:KAI.  POWERS  OF  THE  N.,  c.  A  ST.   L.   RY. 

their  own  cars.  Code  Tenn.  (Shannon's),  §  1505;  (M.  &  V.), 
g 1249ft. 

Demurrage,  Charges  for. — In  Tennessee  a  railroad  company 
cannot  charge  demurrage  in  the  absence  of  a  contract.  This 
iimy  he  done,  however,  by  inserting  a  clause  in  the  bill  of  lading 
to  that  effect.  15  Lea  (Tenn.),  261. 

Railway  may  hold  freight  for  charges.— A  common  carrier 

is  entitled  to  the  possession  of  the  goods  until  the  freight 
charges  are  tendered.  9  Heis.  (Tenn.),  567. 

May  refuse  to  accept  freight  for  transportation,  unless 
charges  are  paid  in  advance.  Hutchison  on  Carriers,  §§  116, 
443;  13  S.  E.  Rep.,  137. 

One  railroad  cannot  bind  connecting  road  as  to  charges,  un- 
less by  agreement  between  them.  7  Bax.  (Tenn.),  345. 

If  articles  shipped  are  of  different  character  than  those 

named  in  bill  of  lading,  and  upon  which  rates  are  higher,  con- 
necting line  may  transport,  charge  and  collect  increased  rate. 
7  BHX.  (Tenn.),  345. 

Receiving  carrier  is  liable  for  goods  lost  by  connecting  line 
in  the  absence  of  agreement  or  clause  in  the  bill  of  lading  to 
the  contrary.  6  Heis.  (Tenn.),  143,  208. 

Goods  may  be  sold  for  freight  charges,  when.— "After  said 

freight  or  merchandise  has  been  held  at  the  said  warehouse, 
depot,  or  station,  uncalled  for  and  not  taken  by  the  consignee, 
for  the  period  of  six  months  and  one  day  from  the  date  of  the 
arrival  of  said  goods  at  said  warehouse,  depot,  or  station,  it 
shall  be  lawful  for  said  common  carrier  and  express  company 
to  send  said  goods  to  one  of  the  principal  offices  in  the  state, 
to  be  sold  for  charges. "  Code  Tenn.  (Shannon's),  §  3598;  (M. 
&  V.),  §2789;  acts  Tenn.  1870-1,  ch.  17,  sec.  1. 

1.  What  notice  required. — The  railroad  company  must  first  notify 
the  consignee  by  written  or  printed  notice,  to  be  delivered  to  the  con- 
signee in  person,  at  his  place  of  business,  if  in  the  city  or  town  where 
received;  or  if  not  residing  or  doing  business  in  the  city  or  town,  then 
through  the  postoffice,  within  three  days  after  the  arrival  of  the  goods, 
of  their  receipt. 

2.  Notice  excused  if  residence  and  post  office  of  consignee  un- 
known.— 8  Lea  (Tenn.),  32-4. 


822  FREIGHT    CHARGES. 

3.  Notice  to  consignor  of  non-acceptance. — In  ordinary  cases  it  is 
not  required  of  the  common  carrier  to  give  notice  to  the  consignor  of  the 
non-acceptance  of  the  property  by  the  consignee;  but  the  nature  of  the 
property  might  be  such  as  to  require  such  notice.  6  Cold.  (Tenn.),  360-1. 
4.  After  the  goods  are  received  and  stored  the  liability  as  a  common 
carrier  ceases  eo  instanti,  and  thereafter  its  liability  is  that  of  a  ware- 
houseman. 7  Pick.  (Tenn.),  701-3;  12  Heis.,  165;  8  Lea  (Tenn.),  33. 

Same.    Notice  of  sale  and  advertisement— "After  said 

freight  or  merchandise  has  been  held  by  said  express  company 
for  the  period  of  six  months  and  one  day,  and  giving  notice  to 
the  consignor,  if  known,  by  written  or  printed  notice,  to  be 
transmitted  through  the  mail,  placed  in  the  postoffice  at  least 
thirty  days  before  the  day  of  sale,  it  shall  be  lawful  for  said 
express  company  to  advertise  said  goods  that  have  not  been 
taken  by  the  consignees  and  advertise  the  same  in  one  or  more 
of  the  daily  papers  in  such  principal  city,  the  said  advertise- 
ment to  be  inserted  on  each  Wednesday  of  the  month  preceding 
the  sale,  specifying  each  article  to  be  sold,  and  stating  date  of 
sale  and  place  of  sale."  Code  Tenn.  (Shannon's),  §  3599;  (M. 
&  V.),  §2790. 

Same.  Disposition  Of  proceeds. — "After  the  sale  has  been 
made,  the  money  received  for  the  sale  of  such  articles  of  mer- 
chandise, after  deducting  charges,  shall  be  sent  to  the  principal 
office  in  the  state,  there  to  be  held  for  the  benefit  of  the  owners 
of  the  goods  sold — a  sworn  copy  to  be  kept  at  the  office  where 
the  sale  has  been  made,  and  a  sworn  copy,  certified  to  by  the 
auctioneer,  to  be  sent  to  the  principal  office  where  the  money 
is  to  be  deposited;  and  they  also  notify  the  person  or  persons, 
if  known,  who  shipped  the  goods  or  packages,  after  being  in 
the  warehouse  six  months,  as  they  are  required  to  notify  the 
person  to  whom  the  same  was  sent. "  Code  Tenn.  (Shannon's), 
§3600;  (M.  &  V.),  §2791;  acts  Tenn.  1870-1,  ch.  17, 
sec.  4. 

Perishable  goods  may  be  sold  sooner.— if  the  goods  cannot 

be  delivered,  and  are  perishable,  and  sale  thereof  is  of  absolute 
necessity  to  protect  the  owners,  the  common  carrier  may  sell 
them,  and  retain  his  charges;  but  if  they  are  not  so  perishable, 
the  common  carrier  must  store  them  itself  or  with  some  respon- 


GENERAL  POWERS  OF  THE  N.,  C.  &  ST.  L.  RY.     823 

sible  warehouseman,  with  or  without  the  advance  of  freight, 
a  reasonable  time.     9  Heis.  (Tenn.),  568-70. 

When  discriminations  in  freight  charges  are  allowed. 

The  duties  and  liabilities  of  railways  as  to  discriminations  are 
now  largely  controlled  by  congress  in  its  act  creating  the  inter- 
state commerce  commission.  That  act,  however,  only  relates 
to  such  freight  and  passengers  as  are  transported  from  one 
state  to  another.  It  does  not  affect  strictly  domestic  trans- 
portations. In  the  State  of  Tennessee  it  has  been  held  that  a 
common  carrier  may  discriminate  in  favor  of  persons  living  at 
a  distance  from  the  end  of  the  route,  where  the  object  is  to 
secure  freight  which  would  otherwise  reach  its  destination  by  a 
different  route,  and  that  other  customers  not  in  like  condition 
will  have  no  right  of  action  because  of  the  discrimination,  if 
the  charges  made  against  them  are  reasonable.  Royan  v. 
Aiken,  9  Lea  (Tenn.),  610.  See  also  the  unreported  case  of 
Cowan*  Me  Clung  &  Co.  v.  E.  T.,  V.  <&  Ga.  Ry.,  decided  at 
Knoxville,  June,  1876.  But  see  code  Tenn.  (M.  &  V.),  §  1272 
[Shannon's  code  Tenn.,  §1531],  which  provides  that  the  state 
shall  have  power,  by  appropriate  legislation,  to  prevent  unjust 
discriminations  against,  and  extortion  for,  freights  and  passage 
over  all  railroads  in  this  state. 

1.  Railroad  commission  created. — By  Acts  Tenn.  1897,  ch.  10,  p.  113, 
the  legislature  has  created  a  railroad  commission  whose  duty  it  is  to  se- 
cure just  and  reasonable  rates  and  charges,  and  to  prevent  unjust  dis- 
crimination.    See  act  itself  for  contents. 

2.  Railroads  may  refuse  to  carry  passengers. — By  Acts   Tenn.   1875, 
ch.  130,  \  1,  no  keeper  of  any  hotel,  public  house  or  carrier  of  passengers 
for  hire,  is  bound  or  under  any  obligation  to  entertain,  carry  or  admit 
any  person  whom  he  shall,  for  any  reason  whatever,  choose  not  to  enter- 
tain, carry  or  admit  to  his  house,  hotel,  carriage  or  means  of  transpor- 
tation.    Code  Tenn.  (Shannon's),  \  3046,  (M.  &  V.)  2398  a.     This  act  seems 
never  to  have  been  repealed. 

FREIGHT  CHARGES  IN  ALABAMA. 

[In  Alabama].    Discriminations  unlawful.    Special   rates 
to  industrial  enterprises  allowed.    Rates  to  be  posted  at 

depot. — "  Every  person  or  corporation,  owning  or  oj>erating  a 
railroad  in  this  state,  must  publish,  by  posting  at  all  the  freight 


824  FREIGHT    CHARGES. 

depots  along  the  line  of  such  railroad,  the  tariffs  of  rates  for 
the  transportation  of  freight  thereon,  showing  the  rates  for 
each  class,  and  including  general  and  special  rates;  and  from 
such  tariffs  no  reduction  shall  be  made  in  favor  of  any  person 
which  is  not  also  made  in  favor  of  all  other  persons  or  corpora- 
tions by  change  in  such  published  rates.  Special  rates,  if  so 
published,  may  be  given  to  any  person  or  corporation  to  aid  in 
the  development  of  any  industrial  enterprise  in  this  state." 
Code  Ala.  1896,  §  3462. 

1.  Extortions  prohibited. —See  Code  Ala.  1896,  \  3460. 

2.  What  evidence  that  rates  are  not  extortionate. — See  Code  Ala. 
1896,  §  3461. 

3.  Agreements  for  pooling-  unlawful. — See  Code  Ala.  1896,  $  3464. 

4.  Railroad  commission. — The  legislature  of  Alabama  has  created  a 
railroad  commission,   whose  duty  is  to  revise  all  tariff  of  charges  for 
transportation,  etc.     See  Code  Ala.  1896,  I  3491. 

Freight  or  passengers,  however,  may  be  transported  free 

in  Alabama. — "Nothing  in  this  code  shall  be  so  construed 
as  to  prevent  any  person  or  corporation  owning  or  operating  a 
railroad  from  transporting  freight  or  passengers  free  of  charge. 
Code  Ala.  1896,  §  3463. 

Carrier  has  lien  On  gOOdS  until  freight  charges  paid.  51 
Ala.,  512. 

Perishable  goods  may  be  sold  for  freight  charges  in  Ala- 
bama.—  "When  any  fruit,  vegetables,  fresh  meat,  oysters, 
eggs,  or  fish,  or  other  property  of  so  perishable  a  nature  as  to 
be  in  danger  of  great  depreciation,  has  been  transported  by  a 
common  carrier  to  the  place  of  destination,  and  remains 
unclaimed  for  one  day  after  its  arrival,  or  if  the  consignee 
resides,  or  is  present  at  the  place  of  destination,  for  one  day 
after  personal  notice  in  writing  to  him,  or  his  agent,  of  the 
arrival  of  the  freight,  and  the  amount  of  charges  due  thereon, 
the  same  may  be  sold  by  the  carrier  or  his  agent  at  public  out- 
cry to  the  highest  bidder  for  cash,  at  some  public  place,  at  the 
point  of  destination,  on  one  day's  notice,  indicating  the  nature 
of  the  package,  the  consignee  and  the  time  and  place  of  sale, 
by  publication  in  some  newspaper  published  at  the  place  of 
destination,  or,  if  none  is  published  thereat,  then  by  posting 


OENKUAI.    POWERS   OF   THE    N.,    C.    4    ST.    L.    KY.  825 

the  notice  at  the  office  or  place  of  business  of  the  carrier." 
Code  Ala.  (1896),  §  4225. 

Hut  for  this  section,  together  with  the  succeed  ing  one,  the  sale  could  not 
be  made,  as  by  §  4321  of  the  Code  of  Ala.,  1890,  a  common  carrier  was 
prohibited  from  selling  freight  entrusted  to  it. 

Other  goods  may  be  sold  for  freight  charges  in  Alabama; 

When. — "When  any  other  freight  than  that  mentioned  in  the 
preceding  section  remains  unclaimed  for  sixty  days  after  its 
arrival  at  the  place  of  destination,  the  same  may  be  sold  by  the 
carrier  or  his  agent  at  public  outcry  to  the  highest  bidder  for 
cash,  at  some  public  place  at  the  point  of  destination,  after  notice, 
indicating  the  nature  of  the  package,  the  consignee,  and  the 
time  and  place  of  sale,  has  been  given  for  three  weeks  by  pub- 
lication, once  a  week  in  some  newspaper  published  at  the  place 
of  destination,  or,  if  no  such  paper  is  there  published,  by  post- 
ing the  notice  at  three  public  places  therein;  but  before  any 
sale  can  be  made  under  this  section,  the  carrier  must,  before 
giving  notice  of  the  sale,  demand  payment  of  the  charges 
due  thereon  from  the  owner  or  consignee,  if  either  of  them 
resides  at  the  place  of  destination  ;  but  if  neither  of  them 
resides  at  such  place,  failure  to  make  such  demand  shall  not 
prevent  the  sale;  but  notice  of  such  sale  must  be  given  the 
consignor  by  mail."  Code  Ala.  (1896),  §  4226. 
See  50  Ala.,  25;  71  Ala.,  117;  96  Ala.,  447. 

FREIGHT  CHARGES  IN  GEORGIA. 

[In  Georgia.  ]  Freight  charges  must  be  reasonable;  extortion 

prohibited. — "If  any  railroad  corporation  organized  or  doing 
business  in  this  state  tinder  any  act  of  incorporation  or  general 
law  of  this  state  now  in  force,  or  which  may  hereafter  be  en- 
acted, or  any  railroad  corporation  organized  or  which  may 
hereafter  l>e  organized  under  the  laws  of  any  other  state,  and 
doing  business  in  this  state,  shall  charge,  collect,  demand,  or 
receive  more  than  a  fair  and  reasonable  rate  of  toll  or  compen- 
sation for  the  transportation  of  passengers  or  freight  of  any 
description,  or  for  the  use  and  transportation  of  any  railroad 


826  FREIGHT    CHARGES. 

car  upon  its  track,  or  any  of  its  branches  thereof,  or  upon  any 
railroad  within  this  state  which  it  has  the  right,  license,  or  per- 
mission to  use,  operate  or  control,  the  same  shall  be  deemed 
guilty  of  extortion,  and  upon  conviction  thereof  shall  be  dealt 
with  as  hereinafter  provided."  Code  Ga.  1895,  §  2187. 

1.  Unjust  discriminations. — By  section  2188  of  the  same  code  unjust 
discriminations  are  forbidden.     See  also  \  2214  of  same  code. 

2.  Railroad,  commissioners. — The  legislature  of  Georgia  passed  an 
act  creating  a  railroad  commission,  whose  duty  it  is  to  make  reasonable 
and  just  rates  of  freight  and  passenger  tariffs,  etc.     See  code  Ga.  1895, 
\  2135  et  seq.,  for  powers,  duties,  etc..  of  commission. 

3.  Storage    charges.— Railroad   commission    fixes.      Code  Ga.    1895, 
§  2206. 

4.  Demurrage. — Railroad    commission    fixes    rate.      Code   Ga.    1895, 
\  2206. 

Railroad  has  lien  on  goods  for  freight  charges  in  Geor- 
gia.— "The  carrier  has  a  lien  on  the  goods  for  the  freight, 
and  may  retain  possession  until  it  is  paid,  unless  this  right 
is  waived  by  special  contract  or  actual  delivery.  This  lien 
exists  only  when  the  carrier  has  complied  with  his  contract 
as  to  transportation.  He  can  recover  pro  rata  for  the  actual 
distance  transported  when  the  consignee  voluntarily  receives 
the  goods  at  an  intermediate  point.  Code  Ga.  1895,  §  2287. 

1.  Carrier  has  a  lien  for  freight  unless  waived,   and  can  detain  goods 
to  satisfy.     12  Ga .,  566.     If  goods  damaged  during  such  detention,  car- 
rier not  liable.     85  Ga.,  343.     If  carrier  refuses  to  deliver,   when  not  en- 
titled to  lien,  trover  lies.     72  Ga.,  655. 

Last  carrier  has  lien  for  freight  on  goods  ordered  shipped  over  another 
road,  only  where  without  notice  of  mistake.  72  Ga.,  655. 

Bill  of  lading  not  showing  .same,  last  carrier  not  bound  by  secret 
contract  with  first  carrier  as  to  reduced  rates.  85  Ga. ,  383. 

Where  by  mistake  rate  charged  less  than  interstate  commerce  act  al- 
lowed, carrier  could  correct  same  on  discovery  and  enforce  lien  for  full 
rate.  94  Ga.,  775;  but  see  96  Ga.,  665. 

May  retain  any  one  of  several  consignments  shipped  under  single 
contract  of  sale,  to  secure  lien.  94  Ga.,  636. 

Freight  due  when  goods  arrive  at  railroad  yard  and  consignee  notified 
that  they  were  subject  to  order.  94  Ga. ,  507. 

If  cars  inaccessible  to  consignee's  teams,  he  must  first  pay  freight, 
and  then  insist  that  they  be  made  accessible  promptly.  94  Ga.,  507. 

2.  Baggage.     Lien  on. — Baggage  can  be  retained  for  dues.     25  Ga. 
62;  but  does  not  exist  where  the  contract  is  void;   25  Ga.,  704. 


GENERAL    TOWERS   OF   THE    N.,    C.    A   ST.    L.    RY.  827 

Goods  may  be  sold  for  freight  charges  in  Georgia,  when.— 

"Whenever  any  person,  natural  or  artificial,  exercising  the 
right  of  transportation  for  hire  in  this  state,  shall  transport  to 
the  place  designated  for  its  delivery  any  property,  and  the 
same  cannot  be  delivered  -according  to  the  terms  upon  which 
said  carrier  has  agreed  to  carry  it,  within  six  months  from  and 
after  the  time  of  arrival  of  such  property  at  the  place  of  de- 
livery, then  and  in  that  case  it  shall  1x3  lawful  for  such  carrier 
to  sell  for  cash  said  property  at  public  auction  at  such  place  as 
m:iy  be  designated  by  such  carrier,  after  having  duly  adver- 
tised the  time,  place  and  terms  of  sale,  once  a  week  for  four 
weeks  in  some  newspaper  published  or  having  a  general  circu- 
lation in  the  county  wherein  such  sale  is  proposed  to  be  made, 
and  the  proceeds  of  sale  shall  be  applied  in  the  Hrst  place  to 
the  payment  of  all  chrfrges  of  carriage  due  to  such  carrier, 
together  with  all  expenses  incident  to  such  sale  and  the  adver- 
tisement thereof,  and  then  the  residue,  if  any,  of  the  proceeds 
be  deposited  in  some  convenient  state  or  national  bank,  located 
in  this  state,  to  be  selected  by  the  carrier.''  Code  Ga.  1895, 
§  2303. 

Live  stock  and  perishable  goods  may  be  sold  for  freight 

Charges  in  Georgia,  When. — "Whenever  the  property  so 
transported  and  not  delivered  is  live  freight,  the  same  may  be 
sold  as  hereinbefore  provided,  on  five  days'  notice,  and  when- 
ever the  property  is  fruit,  vegetables,  fresh  meat,  or  other 
articles  of  an  immediately  jxjrishable  nature,  the  same  may  be 
sold  as  hereinl>efore  provided,  on  twenty-four  hours'  notice. 
In  any  case  provided  for  by  this  section  the  carrier  will  give 
the  notice  in  such  manner  as  the  carrier,  in  the  exercise  of 
good  faith  and  with  a  view  to  making  the  best  sale,  shall  deter- 
mine; but  in  every  such  case  notice  in  a  newspaper  circulating 
or  published  at  the  place  of  sale,  or  personal  notice  to  either 
the  consignor  or  consignee  of  such  freight,  for  the  time  for 
which  such  notice  is  required  to  be  given,  shall  IK;  deemed  and 
held  sufficient."  Code  Ga.  1995,  §2304. 

Deposit  Of  proceeds. — "  Upon  the  deposit  in  bank  of  the  net 
proceeds  of  sale  the  entry  of  such  deposit  shall  show  the  names 


828  FREIGHT    CHARGES. 

of  both  consignor  and  consignee,  and  the  deposit  shall  not  be 
drawn  out  except  by  the  consent  of  both,  or  on  the  judgment 
or  order  of  a  court  having  jurisdiction  in  the  premises.  Code 
Ga.  1895,  §  2305. 

FREIGHT  CHARGES  IN  KENTUCKY. 

[in  Kentucky.  ]  Rates  must  be  just  and  reasonable ;  extor- 
tion prohibited. — "  If  any  rail  road  corporation  shall  charge,  col- 
lect, or  receive  more  than  a  just  and  reasonable  rate  of  toll  or 
compensation  for  the  transportation  of  passengers  or  freight  in 
this  state,  or  for  the  use  of  any  railroad  car  upon  its  track,  or 
upon  any  track  it  has  control  of,  or  the  right  to  use  in  this 
state,  it  shall  be  guilty  of  extortion."  Code  Ky.  (1894), 
§816. 

1.  Penalty.     See  \  819  of  same  code. 

2.  Trial  for.     See  \  829  of  same  code. 

3.  Railroad  commission.     The  legislature  of  Kentucky  has  passed 
an  act  creating  a  railroad  commission,  whose  duty  it  is  to  see  that  the 
laws  relating  to  railroads  are  faithfully  executed,  and  to  exercise  a  gen- 
eral supervision  over  the  roads  in  the  state.     Code  Ky,  (1894),  \  821  etseq. 

Discrimination,  what  is  in  Kentucky.— "  if  any  corporation 

engaged  in  operating  a  railroad  in  this  state  shall,  directly  or 
indirectly,  by  any  special  rate,  rebate,  drawback  or  other  de- 
vice, charge,  demand,  collect  or  receive  from  any  person  a 
greater  or  less  compensation  for  any  service  rendered  in  the 
transportation  of  passengers  or  property  that  it  charges,  de- 
mands, collects  or  receives  from  any  other  person  for  doing  for 
him  a  like  and  contemporaneous  service  in  the  transportation  of 
a  like  kind  of  traffic,  it  shall  be  deemed  guilty  of  unjust  dis- 
crimination." Code  Ky.  1894,  §817. 

1.  Penalty. — See  \  819  of  same  code. 

2.  Trial  for. — See  'i  82'J  of  same  code. 

Preference  or  advantage  forbidden.— See  code  Ky.  1894, 

§818. 

Long  and  Short  haul.— See  code  Ky.  1894,  §  820. 

Demurrage. — The  question  as  to  whether  charges  made  un- 
der the  rules  of  car  service  association  for  detention  of  cars  is 


GENERAL    TOWERS   OF   THE    N.,    C.    A   ST.    L.    RY.  829 

a  reasonable  charge,  and  the  time  fixed  for  loading  and  unload- 
ing is  a  reasonable  time,  are  questions  of  fact.  98  Ky.,  152. 

Railroad  has  lien  on  goods  for  freight  charges  in  Ken- 
tucky.— A  common  carrier  of  freight  has  a  lien  u|x>n  each 
shipment  so  long  as  it  remains  in  its  possession,  for  the  charges 
thereon,  but  it  cannot  refuse  to  receive  freight  because  back 
rli:irges  for  other  shipments  have  not  been  paid  ;  nor  can  it,  by 
mere  notice  to  the  shipper,  acquire  a  lien  on  a  shipment  about 
to  be  made,  for  such  back  charges.  Eiatern  Ky.  Ry.  Co.  v. 
Holbrook.  4  R.,  730. 

Goods  perishable,  or  unclaimed,  and  baggage  may  be  sold 
for  freight  charges,  in  Kentucky,  when.— "Every  company 

that  shall  have  unclaimed  freight,  not  perishable,  or  unclaimed 
baggage  in  its  possession,  for  one  year  or  more,  may  sell  the 
same  at  public  auction,  and,  out  of  the  proceeds  thereof,  retain 
the  expenses  of  transportation,  storage,  advertisement,  and 
sale.  Notice  of  such  sale  shall  be  given  to  the  consignor  and 
consignee,  by  letter  addressed  to  each  of  them,  respectively, 
and  mailed  to  the  nearest  postoffice  to  the  place  at  which  the 
goods  were  received,  and  to  which  they  were  carried;  and 
notice  of  such  sale  shall  also  be  published  for  four  weeks  in 
some  newspaper  of  general  circulation  in  the  state.  In  case 
the  freight  is  perishable,  it  may  be  sold  as  soon  as  it  is  deemed 
necessary  and  proper,  and  notice  of  such  sale  shall  be  given,  if 
practicable,  to  the  consignor  and  consignee,  as  herein  directed. 
A  record  shall  be  kept  of  the  articles  sold,  and  the  prices  ob- 
tained therefor,  and  the  surplus,  if  any,  after  payment  of 
charges,  shall  be  paid  to  the  owner  of  such  articles,  if  de- 
manded at  any  time  within  two  years  from  date  of  sale.  Code 
Ky.  1894,  §  785. 


830  LEASES,    ETC. 


CHAPTER  LXX. 

LEASES— POWER  OF  THIS  COMPANY  TO  LEASE  OTHER  ROADS- 
POWER  TO  LEASE  ITS  OWN  ROAD  TO  OTHERS—  WHAT 
VOTE  NECESSARY,  AND  WHO  TO  ACT  UPON— 
LEASE  OF  ROLLING  STOCK,  ETC. 

Right  of  Nashville,  Chattanooga  &  St.  Louis  Railway  to 

lease  Other  roads. — [In  Tennessee.]  It  is  a  well  established 
principle  of  law  that  railway  companies  have  no  power,  in  the 
absence  of  statutory  authority,  to  make  leases  of  their  road 
and  franchises,  nor  to  receive  a  lease  of  the  road  and  franchises 
of  another  company.  Its  charter  being  in  the  nature  of  a  con- 
tract, the  corporation  cannot  voluntarily  surrender  the  powers 
.  and  franchises  it  received  from  the  state,  or  delegate  the  duties 
and  obligations  it  owes  to  the  public,  without  the  express  sanc- 
tion of  the  state.  130  U.  S.,  1;  118  U.  S.,  290;  101  U.  S., 
71;  17  How.,  36;  11  Otto,  71,  87;  6  Lea  (Tenn.),  376;  45 
Am.  &  Eng.  R.  R.  Cases,  607;  32  Am.  &  Eng.  R.  R.  Cases, 
409;  39  Am.  &  Eng.  R.  R.  Cases,  196;  4  Pick.  (Tenn.),  153. 
This  being  so,  it  would  follow  that  unless  such  authority  is 
given  in  the  original  charter  of  the  Nashville,  Chattanooga  & 
St.  Louis  Railwa}r,  amendments  thereto,  or  by  the  general  law, 
it  cannot  be  done. 

Same.    Charter  provision  on  subject.— There  is  nothing 

in  the  original  charter  authorizing  the  company  to  lease  other 
roads,  and  nothing  relating  to  its  right  to  lease  its  road  to 
another  company,  save  the  following.  Sec.  14,  after  limiting 
transportation  charges,  closes  thus:  "And  provided,  also,  That 
the  said  company  may,  when  they  see  fit,  farm  out  their  rights 
of  transportation  on  said  road,  subject  to  the  rates  above  men- 
tioned." Charter,  sec.  14,  p.  9,  herein.  This  section,  how- 
ever, could  hardly  authorize  the  lease  of  the  road,  franchises, 
right  of  way,  appurtenances,  etc.,  but  simply  contemplated 
and  sanctioned  the  farming  out  of  the  right  of  transportation. 


GENERAL    POWERS   OF    THE    N.,    C.    A   ST.    L.    RY. 

In  other  words,  the  authority  was  conferred  to  allow  other  rail- 
ways, when  the  company  saw  fit,  to  run  their  engines  and  cars 
on  the  tracks  of  the  Nashville  &  Chattanooga  Railroad  Com- 
pany and  carry  freight,  subject  to  the  rates  therein  provided 
for.  It  did  not  contemplate  a  lease,  but  simply  a  license. 

Amendment  to  charter  authorizing  lease  of  other  roads.— 

The  legislature  of  Tennessee,  on  November  11,  1857,  passed 
the  following  act: 

"SEC.  1.  That  the  Nashville  &  Chattanooga  Railroad  Com- 
pany are  hereby  authorized  and  empowered  to  lease  the  Win- 
chester &  Alabama  Railroad  and  the  branch  to  Fayetteville,  or 
any  other  railroad  connecting  with  said  Nashville  &  Chatta- 
nooga Railroad,  for  such  time,  and  upon  such  terms  and  con- 
ditions as  may  be  agreed  upon  between  the  president  and  direc- 
tors of  the  said  Nashville  &  Chattanooga  Railroad  Company, 
and  the  president  and  directors  of  the  railroad  company  con- 
tracted with. 

SEC.  2.  Be  It  further  enacted,  That  the  companies  of  all 
laterals  and  main  line  railroad  companies  shall  be  entitled  to  the 
benefits  of  this  act  and  shall  have  the  benefits,  and  privileges 
and  powers  conferred  on  the  said  companies  mentioned  in  the 
first  section  of  this  act. 

SEC.  3.  Be  it  further  enacted,  That  all  railroad  companies 
availing  themselves  of  the  privileges  of  this  act,  as  well  as  the 
companies  specified  in  the  first  section,  shall,  in  the  hands  of 
the  lessees,  be  liable  to  all  liens  in  favor  of  the  state,  and  to  all 
liabilities  imposed  by  their  charters  or  the  general  law  of  the 
land,  in  the  same  manner  that  the  company  or  companies  so 
leasing  would  have  been  had  no  lease  been  made;  I\'ovidt'd, 
That  the  payment  of  the  sinking  fund  provided  for  by  existing 
laws  shall  bo  secured  by  the  company  so  leasing  said  road." 

SEC.  4  AND  5.  (Relate  to  other  matters).  Acts  Tenn. 
1857-8,  ch.  8,  p.  5;  Code  Tenn.  (M.  &  V.),  §  1249,  d.  and  e.; 
Shannon's,  §£  150T-8. 

1.  Validity  of  this  amendment. — The  foregoing1  amendment  to  the 
charter  of  the  Nashville.  Chattanooga  &  st.  Louis  Railway  was  decided 
by  Judge  Lurton  of  the  United  States  circuit  court  of  appeals,  sitting  at 


832  LEASES,    ETC. 

Cincinnati,  in  the  case  of  J.  S.  Rodgers  v.  X.  C.  &  St.  L.  Ry.,  to  be  inop- 
erative as  an  amendment;  that  the  second  section  of  the  act,  by  extend- 
ing- the  benefits  of  the  act  to  all  corporations  owning  either  branch  or 
trunk  lines,  became  a  general  law;  but  whether  treated  as  a  special  or 
general  public  law,  it  was  a  law  dealing-  with,  the  power  of  railroad 
companies  to  make  or  accept  leases  of  the  constructed  lines  owned  by 
other  railroad  corporations;  that  the  subject  was  revised  in  the  Code 
(Tenn.),  1858,  and  that  the  effect  of  such  revision  was  to  repeal  the  pro- 
visions of  the  previous  act  and  substitute  therefor  the  legislation  found 
in  the  code;  that  the  code  conferred  the  power  without  prescribing  the 
mode  of  its  exercise.  The  opinion  has  not  as  yet  been  published  in  any 
of  the  reports. 

2.  The  supreme  court  of  Tennessee  has  never  passed  upon  this 
amendment,  nor  has  any  appeal  as  yet  been  taken  from  Judge  Lurton's 
decision.  The  supreme  court  of  Tennessee,  as  well  as  the  United  States, 
may  uphold  this  decision;  but  with  profound  deference  to  the  recog- 
nized ability  and  great  learning  of  Judge  Lurton,  we  do  not  believe 
they  will  do  so.  It  is  true  that  franchises  granted  after  incorporation, 
without  imposing  additional  burdens,  whether  enacted  as  amendments 
to  the  charter  or  as  enabling  acts,  are  ordinarily  considered  merely  gra- 
tuitous, are  not  protected  as  contracts,  and  may  be  revoked  at  pleasure. 
Thompson  on  Corp.,  §  5435;  102  Pa.  St.  123.  The  question  then  resolves 
itself  into  whether  or  not  the  act  has  been  repealed.  It  was  originally 
passed  as  an  amendment  to  the  charter  of  the  Nashville,  Chattanooga  & 
St.  Louis  Railway,  but  by  section  2  thereof  it  was  made  to  apply  to 
"all  laterals  and  main  line  railroad  companies."  It  may  therefore  be 
divided  into  two  parts.  The  first  applying  strictly  to  this  company; 
the  second,  to  all  railroad  companies.  The  first  part  was  thus  made  a 
special  law;  the  second  a  general  law.  This  special  law  has  never  been 
repealed,  though  the  general  law  portion  of  it  has  subsequently  been 
modified.  As  a  general  rule,  moreover,  a  general  law  does  not  repeal  a 
prior  special  law  merely  because  it  embraces  the  same  subject  matter. 
An  intent  to  repeal  the  special  law  must  be  manifested  either  by  express 
words  or  by  language  extending  the  operations  of  the  general  laws  to 
all  cases  embraced  by  it,  or  there  must  be  some  inconsistency  or  absurd- 
ity in  -the  two  standing  together.  Lewis  on  Em.  Dom.,  §248;  3  Sands 
689;  25  N.  J.  L.,  54;  36  N.  J.  L.,  198;  25  Mo.,  540;  95  N.  C.,  77;  3  S.  C., 
381;  34Wis.,  173;  5  Ind.,  413;  3  Sneed  (Tenn.),  119;  1  Head  (Tenn.),  114; 
3  Lea  (Tenn,),  557;  3  Cold.  (Tenn.)  438:  16  Lea  (Tenn.),  Ill;  3  Bax. 
(Tenn.),  152;  1  Pick.  (Tenn.),  451;  4  Pick.  (Tenn.),  138;  13  Pick.  (Tenn.), 
707;  5  Pick.  (Tenn.),  723;  12  Pick.  (Tenn.),  17;  157  U.  S.,  58;  109  U.  S.,  556. 

Thus  where  an  act  incorporating  a  turnpike  company  required  the 
rates  of  toll  to  be  written  on  signboards  in  "large  or  capital  letters,"  and 
a  general  act  was  afterwards  passed  requiring  the  rates  of  toll  on  turn- 
pike roads  to  be  written  in  capital  letters,  it  was  held  that  the  private 
act  was  not  suspended  or  repealed  by  the  general  act.  3  Pick.,  342.  See, 
however,  113  111.,  340;  13  C.  B.  (N.  S.),  838;  Black  on  Intp.  of  Laws,  116, 
118. 


GENERAL    POWERS   OF   THE    N.,    C.    A   ST.    L.    RY.  833 

The  question  being  one  of  intent,  and  as  there  is  no  legislative  in- 
tent manifested  in  any  of  the  acts  to  repeal  the  special  law  as  applicable 
to  the  Nashville,  Chattanooga  &  St.  Louis  Railway  to  lease  connecting 
branches,  it  should  be  considered  as  in  full  force  and  effect.  The  carry- 
ing of  the  general  act  portion  of  it  into  the  code  of  1858  should  not 
disturb  the  special  portion.  The  president  and  directors  of  the  com- 
pany, therefore,  should,  by  a  liberal  interpretation  of  the  act,  be  em- 
powered to  lease  any  railway  connecting  with  the  Nashville,  Chatta- 
nooga \-  St.  Louis  Railway  without  regard  to  the  wishes  of  the 
stockholders,  for  the  act  specifically  provides  that  the  lease  shall  be 
made  for  such  time  and  upon  such  terms  and  conditions  as  may  be  agreed 
upon  between  the  president  and  directors  of  the  contracting  roads. 
They  were  the  ones  and  the  only  ones  required  to  act.  They  were  to 
"contract,"  to  "agree,"  to  make  the  lease  for  such  time  and  upon  such 
terms  and  conditions  as  they  might  agree  upon.  No  mention  is  made  of 
the  stockholders.  They  were  to  do  nothing. 

The  acts  of  1881,  ch.  9,  as  well  as  the  other  acts  requiring  the  consent 
of  tlie  stockholders,  was  much  broader  in  its  terms  than  the  acts  of 
1857-58,  ch.  8,  and  for  that  reason  the  legislature  very  wisely  required 
the  consent  of  the  stockholders  in  the  former  case,  though  not  in  the 
latter. 

General  law,  conferring  right  to  lease  other  roads.— In- 
dependent of  the  amendment  to  the  original  charter  above  set 
out,  the  right  to  lease  other  roads  exists  under  the  general  laws 
of  the  state  of  Tennessee.  The  act  above  referred  to  was  not 
only  passed  as  an  amendment  to  the  charter  of  the  Nashville  & 
Chattanooga  Railroad  Company,  but  was  also  made  to  apply 
by  section  2  thereof,  to  "all  laterals  and  main-line  railroad 
companies.  This  section  was  very  ambiguous,  but,  as  Judge 
Lurton  remarked  in  the  case  of  Arrowsmith  v.  N.  &  D.  R.  R. 
Co.,  59  A.  &  E.  R.  R.  Cases,  p.  87,  "  the  codiliersof  the  code 
of  1858  simplified  it,  and  carried  it  forward  in  the  code  in  plain, 
unequivocal  language,  and  any  conflict,  if  any  there  lie,  be- 
tween the  acts  passed  during  the  session  of  1857-8  and  the 
code  enacted  at  the  same  session,  must  l>e  resolved  in  favor  of 
the  code.  (Code,  £41).  The  effect  of  these  sections  is  to 
permit  connecting  lines  to  be  leased."  59  A.  &  E.  R.  R.  OaMO, 
p.  87. 

The  sections  as  brought  forward  in  the  code  of  1858,  as 
§§1122,  1123,  and  subsequently  embodied  in  the  code  Ten n. 
(M.  &  V.),  §§  1249d,  1249*?,  were  as  follows: 

53 


834  LEASES,    ETC. 

"A  railroad  company  owning  any  main  line  may  contract 
with  any  company  owning  a  railroad  connecting  with  such 
main  line  for  the  lease  thereof."  Code  Tenn.  (M.  &  V.), 
§  1249C?;  Shannon's  code,  §  1507. 

"The  lessee  shall  hold  such  road  subject  to  the  liens  and 
liabilities  to  which  it  was  subject  in  the  hands  of  the  lessor, 
and  be  bound  for  all  payments  for  which  the  lessor  was  liable." 
Code  Tenn.  (M.  &  V.),  §1249^;  Shannon's  code,  §1508. 

Same.     The  next  act  relating  to  leases   was   passed 

March  13,  1868.  This  act,  however,  conferred  no  power  to 
lease,  but  simply  restricted  its  exercise  among  roads  that 
already  possessed  the  authority.  It  prohibited  receivers,  pres- 
idents, or  president  and  directors  or  superintendent,  other  offi- 
cers or  agents  from  making  a  lease  without  the  consent  of  the 
requisite  majority  of  the  stockholders.  In  other  words,  it  was 
simply  a  legislative  recognition  of  the  common  law.  Acts 
Tenn.,  1867-68  (Public),  ch.  72,  p.  92. 

As  the  provisions  of  this  act,  however,  were  superseded  by 
the  Acts  of  Tenn.,  1881,  ch.  9,  p.  10,  sees.  2-3,  there  is  noth- 
ing of  any  practical  value  left  in  it,  if  the  Acts  of  Tenn., 
1881,  are  constitutional. 

Same.    The  next  act  relating  to  leases  was  passed  January 

27,  1870,  the  fourth  section  of  which  provided:  "That  it  shall 
and  may  be  lawful  for  the  Mississippi  River  Railroad  Company, 
and  any  other  railroad  company  created  by  and  existing  under 
the  laws  of  this  state,  and  for  any  lessees  of  a  railroad  of  such 
company,  from  time  to  time,  to  subscribe  for  or  purchase  the 
stock  and  bonds,  or  either,  of  any  other  railroad  compan}r  or 
companies  chartered  by,  or  of  which  the  road  or  roads  is  or  are 
authorized  to  extend  into  this  state;  and  to  make  contract  with 
such  company  or  companies  for  the  construction,  maintenance, 
repairs,  or  equipment,  as  well  as  lease  of  such  other  railroad  or 
railroads,  upon  such  terms  as  may  be  agreed  upon  by  the  com- 
pany or  companies  owning  the  same,  or  by  the  companies  and 
such  lessees;  Provided,  That  the  roads  of  the  said  companies 
so  contracting  or  leasing  shall  be  directly,  or  by  means  of  in- 
tervening railroads,  connected  with  each  other;  And  provided 


(,|.M  .KM.    1'OWERS    OF   THE    X.,    C.    A    ST.    L.    RY.  836 

fin-tin'?,  That  the  authority  herein  conferred,  of  subscribing  or 
purchasing  stock  or  lx>nds,  or  leasing  any  railroad,  shall  not, 
when  exercised,  in  any  way  impair  the  statutory  lien  created 
in  favor  of  the  State  of  Tennessee,  under  the  general  internal 
improvement  laws  of  the  state,  on  the  roadbed,  rolling  stock, 
and  equipment  of  either  of  the  roads,  or  deprive  the  state, 
through  its  general  assembly,  from  passing  any  and  all  laws 
which  may  be  deemed  necessary  and  proper  to  preserve  the 
debt  that  may  be  due  and  owing  to  the  state  because  of  any 
state  aid  furnished  to  either  of  the  contracting  parties  or 
roads."  Acts  Tenn.  1869-70,  ch.  49,  p.  327,  sec.  4.  See 
also  code  Tenn.  (M.  &  V.),  §1262;  Shannon's  code,  $1520. 
See  also  acts  Tenn.  1871,  ch.  69,  which  might  be  construed 
into  authority  to  lease.  Code  Tenn.  (S.),  §  1509;  (M.  &  V., 
jt  1250. 

Same.     The  next  act  relating  to  leases  was  passed  in 

1881,  and  provided,  among  other  things,  by  section  2,  that 
"all  railroad  companies  now  or  hereafter  existing  under  the 
laws  of  this  state,  or  of  this  state  and  any  other  state  or  states,  be 
and  they  are  hereby  authorized  and  empowered  to  build,  lease, 
or  let,  acquire  by  purchase,  lease  or  otherwise,  and  operate, 
hold,  or  dispose  of  any  railroad  or  railroads  in  any  state  or 
states,  or  any  parts  or  portions  of  any  such  railroad  or  railroads, 
and  the  distribution  thereof,  as  may  be  determined  upon  by 
their  stockholders;  Provided,  That  the  same  be  approved  by 
the  votes  of  the  holders  of  three-fourths  in  amount  of  the  entire 
stock  of  said  company,  at  a  regular"  or  called  meeting  of  the 
stockholders  of  said  company.  .  .  .  Pivoided  further, 
That  sixty  days'  notice  be  given  in  a  Memphis,  Knoxville,  and 
Nashville  daily  newspaj)er  of  the  time,  place,  and  purpose  of 
the  meeting."  Acts  Tenn.  1881,  ch.  9,  p.  10,  sec.  2.  Code 
(M.  &  V.)  $  1275;  Shannon's  code,  §  1540.  This  act,  how- 
ever, is  open  to  many  objections  from  a  constitutional  stand- 
point on  account  of  its  caption,  though  it  has  never  l>een  de- 
clared unconstitutional.  The  supreme  court  has  never  passed 
upon  it  save  indirectly.  See  4  Pick.  (Tenn.),  140. 


836  LEASES,    ETC. 

Same.    The  next  act  relating  to  leases  was  passed  in  1891, 

as  an  amendment  to  the  above  act,  and  provided:  "  Provided, 
The  same  be  approved  by  the  vote  of  three-fourths  in  amount 
of  the  capital  stock  of  said  company  present  and  voting,  either 
in  person  or  by  written  proxy,  at  a  regular  or  called  meeting 
of  the  stockholders.  Acts  Tenn.  1891,  ch.  61,  p.  146;  Shan- 
non's code  Tenn.,  §  1540. 

Same.    The  next  act  relating  to  leases  was  also  passed 

in  1891,  and  during  the  same  term  of  the  legislature  as  the 
above.  It  provided,  "That  any  and  all  railroad  companies 
now  or  hereafter  existing  under  the  laws  of  this  state,  or  of 
this  state  and  any  other  state  or  states,  whose  charter  of  in- 
corporation was  or  may  be  granted  by  this  state,  be  and  they 
are  hereby  authorized  and  empowered  to  acquire  the  line  or 
lines  of  any  other  railroad  company,  either  in  this  state  or  in 
any  other  state  or  states  which  may  connect  with  and  form 
parts  and  parcels  or  branches  or  extensions  of  the  line  of  such 
company  chartered  by  this  state,  or  by  this  state  and  any 
other  state  or  states;  and  are  authorized  and  empowered  to  so 
acquire  such  branches  or  extensions  by  purchase,  lease,  or 
otherwise,  and  pay  for  the  same  by  the  issue  of  their  own 
capital  and  bonds,  or  by  guaranteeing  those  issued  by  the  com- 
pany whose  line  may  be  so  acquired,  purchased,  or  leased; 
Provided,  however,  That  nothing  in  this  act  shall  be  construed 
so  as  to  authorize  the  acquisition  in  any  way  by  any  corpora- 
tion or  company  of  parallel  or  competing  lines."  Acts  Tenn. 
1891,  ch.  125,  p.  274;  Shannon's  code  Tenn.,  §1521. 

Summary. — From  the  foregoing  acts  it  will  clearly  appear 
that  the  Nashville,  Chattanooga  &  St.  Louis  Railway  has  now 
the  right  to  lease  other  railroads.  Though  the  right  exists,  the 
method  of  doing  so,  that  is,  whether  to  be  done  by  president 
and  directors,  or  by  stockholders,  together  with  the  proper 
meeting  and  vote  necessary,  is  left  in  considerable  doubt  by  the 
seeming  conflicts  in  the  acts  heretofore  set  out.  These  ques- 
tions, however,  will  now  be  discussed. 

Who  to  authorize  lease,   directors  or  stockholders.— if 

the  acts  Tenn.  1857-8,  ch.  8,  p.  5,  heretofore  referred  to,  and 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     837 

which  was  passed  as  an  amendment  to  the  charter  of  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  is  now  in  full  force 
and  oj>eration  as  such,  the  president  and  directors  of  said  com- 
pany, alone,  without  the  ratification  of  the  stockholders,  may 
lease  any  railroad  connecting  with  it,  for  such  time  and  upon  such 
terms  and  conditions  as  ma}'  be  agreed  upon  lietween  them  and 
the  president  and  directors  of  the  railroad  company  contracted 
with.  As  this  amendment  has  been  decided,  however,  as  here- 
tofore explained,  not  to  be  in  full  force  and  operation  as  such, 
prudence  should  require  that  no  action  be  taken  thereunder 
until  the  question  is  finally  decided.  Laying  aside,  therefore, 
this  amendment,  the  general  laws  alone  must  l>e  relied  upon. 
In  doing  this,  it  must  be  borne  in  mind  that,  in  the  absence  of 
statute,  the  directors  of  a  railroad  company  have  no  authority 
to  lease  another  road,  or  to  lease  their  own  road  to  another 
company,  without  the  consent  of  the  stockholders.  It  is  true 
the  board  of  directors  are  the  managers  of  the  business  which 
the  corporation  is  chartered  to  carry  on,  and  they  have  the 
control  and  management  of  that  business,  "but  they  have  no 
power  to  effect  organic  and  fundamental  changes  in  the  cor- 
poration or  its  business  without  the  consent  of  the  stockhold- 
ers. They  are  elected  for  a  specified  time  to  manage  its  affairs, 
and  at  the  expiration  of  that  time  they  .are  expected  to  turn 
over  to  the  corporation  the  property  with  which  they  have 
been  entrusted.  They  cannot  dispose  of  it,  and  thus  put  it  out 
of  their  power  to  return,  or  lease  it,  and  thus  change  its  busi- 
ness from  that  of  making,  constructing,  maintaining,  and  op- 
erating a  railroad  to  that  of  receiving  rents  for  the  use  of  such 
road.  Such  an  act  would  involve  a  withdrawal  from  the  con- 
trol and  management  of  the  stockholders  the  entire  pro|>erty  of 
the  corporation  forever,  or  for  the  term  of  years  mentioned  in 
the  lease,  and  deny  them  the  right  of  suggestion  and  disap- 
proval as  to  its  operation  and  management."  15  Am.  &  Eng, 
R.  R.  Cases,  56;  13  Reporter,  167;  18  Wall.,  234. 

This  being  so,  under  the  general  law,  the  proposition  to 
lease  must  l>e  submitted  to  the  stockholders  and  acted  upon  by 
them. 


838  LEASES,     ETC. 

What  vote  and  notice  necessary  to  lease  another  road.— if 

the  amendment  to  the  charter  as  heretofore  set  out,  acts  Tenn. 
1857-58,  p.  5,  is  still  in  full  force  and  effect,  the  president 
and  directors  can,  at  a  legally  called  meeting,  by  a  majority 
vote  of  their  own  members,  make  the  lease  without  the  consent 
of  the  stockholders.  As  the  amendment  has  been  held  inopera- 
tive, however,  as  heretofore  explained,  prudence  should  require 
that  the  general  acts  be  followed  until  the  question  is  finally 
decided.  The  vote  and  notice  necessary  under  those  acts  will 
now  be  discussed. 

In  the  case  of  J.  S.  Rogers  v.  Nashville,  Chattanooga  &  St. 
Louis  Railway,  decided  by  the  United  States  circuit  court  of 
appeals  sitting  at  Cincinnati,  November  9,  1898;  but  which 
opinion  has  not  as  yet  been  published  in  any  of  the  reports, 
Judge  Lurton,  in  construing  these  acts,  held  that  "the  acts  of 
1881,  ch.  9,  heretofore  set  out,  regulated-the  power  of  leasing 
conferred  by  §  1122  of  the  code  of  Tenn.,  by  requiring  that 
such  leases  should  be  approved  by  three-fourths  in  amount  of  the 
entire  capital  stock  of  the  leasing  company;  that  the  acts  of  1887, 
ch.  198,  heretofore  set  out,  authorized  all  corporations  '  exist- 
ing under  the  laws  of  this  state  to  lease  and  dispose  of  their 
property '  to  any  corporation  of  this  or  any  other  state  '  en- 
gaged in  or  carrying  on  ....  the  same  general  busi- 
ness as  is  authorized  by  the  lessor  corporation, '  and  such  lessee 
corporation  was  by  the  same  act  authorized  to  accept  any  such 
lease.  The  act  contains  several  provisos,  one  of  which  was 
that  any  such  lease  should  be  made  under  the  direction  of  the 
directors  of  such  corporation  when  authorized  or  approved  by 
the  vote  of  a  majority  in  amount  of  the  stock  of  each  corpora- 
tion. Another  proviso  provided  that  '  this  act  shall  not  be  so 
construed  as  to  authorize  any  corporation  of  this  or  any  other 
state  to  lease  or  purchase  any  competing  line  of  railroad.' 
This  act  makes  no  reference  to  any  previous  legislation  upon 
the  same  subject  and  contains  no  repealing  clause.  Inasmuch 
as  it  conflicts  in  respect  to  the  previous  mode  of  exercising  this 
power  of  leasing  or  purchasing  railroads,  it  must  be  regarded 
as  so  amending  the  acts  of  1881,  ch.  9,  as  to  require  only  the 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RY.  839 

consent  of  a  majority  of  the  stockholders  of  each  contracting 
company.  This  was  followed  by  the  acts  of  1891,  ch.  61, 
which  amended  the  acts  of  1881,  ch.  9,  so  that  section  2  of 
that  act  should  read:  ' Pwoided,  That  the  same  he  approved 
by  the  vote  of  three-fouiths  in  amount  of  the  capital  stock  of 
said  company  present  and  voting,  either  in  person  or  by  writ- 
ten proxy,  at  a  regular  or  called  meeting  of  the  stockholders 
of  said  company.'  This  act  makes  no  reference  to  the  act  of 
1887,  ch.  198,  and  contains  no  repealing  clause.  The  neces- 
sary effect  of  the  act  was  to  revive  the  provisions  of  the  older 
act  of  1881,  so  far  as  they  related  to  the  subject  of  leasing  or 
purchasing  railroads  by  railroad  corporations  'existing  under 
the  laws  of  Tennessee,'  'or  of  this  and  any  other  state  or 
states.'  The  conclusion  we  reach  is  that  the  power  of  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  to  accept  a  lease 
depends  upon  the  acts  Tenn.  of  1881,  ch.  9,  as  amended  by  the 
acts  Tenn.  of  1891,  ch.  61.'  " 

Under  this  decision,  therefore,  in  order  to  lease  another  rail- 
road, the  proposition  must  be  approved  by  the  vote  of  three- 
fourths  in  amount  of  the  capital  stock  of  the  company  present 
and  voting,  either  in  person  or  by  written  proxy,  at  a  regular 
or  called  meeting  of  the  stockholders  of  said  company,  and 
that  sixty  days'  notice  be  given  in  Memphis,  Knoxville,  and 
Nashville  daily  newspapers  of  the  time,  place,  and  purpose  of 
the  meeting. 

1.  It  will  be  noticed  that  only  three-fourths  of  the  stock  present  and 
voting  is  required.     This  would  not  necessarily  require  three-fourths  of 
the  entire  capital  stock  unless  that  amount  was  present  and  voting. 

2.  Both  roads  must  have  power. — In  order  to  lease  or  sell  a  road,  the 
lessor  or  vendor  company  must  have  power  to  lease  or  sell,  and  the  les- 
see or  vendee  company  must  have  power  to  accept  the  lease,  or  to  buy. 
161  U.  S.,  «86;  99  Ky.,  570 

Right  of  Nashville.  Chattanooga  &  St.  Louis  Railway  to 
lease  its  own  road,  or  any  part  thereof,  to  another  com- 
pany.— As  heretofore  shown,  the  Nashville,  Chattanooga  & 
St.  Louis  Railway  has  the  |K>wer  to  lease  other  railways. 
We  will  now  discuss  the  authority  to  lease  its  own  road 
or  any  part  thereof  to  another  company.  This  cannot  be  done 


840  LEASES,    ETC. 

without  legislative  authority  expressed  either  in  the  charter  or 
in  the  general  law. 

There  is  nothing  in  the  charter  or  amendments  thereto,  upon 
the  subject.  The  only  clause  having  any  reference  to  the  sub- 
ject is  to  be  found  in  section  14,  which,  among  other  things, 
provides  as  follows:  "  And  provided  also,  that  the  said  company 
may,  when  they  see  tit,  farm  out  their  rights  of  transportation 
on  said  road,  subject  to  the  rates  above  mentioned."'  This  sec- 
tion, however,  could  hardly  authorize  the  lease  of  the  road 
franchises,  right  of  way,  appurtenances,  etc.,  as  before  ex- 
plained, but  simply  contemplated  and  sanctioned  the  farming 
out  of  the  right  of  transportation.  In  other  words,  the  author- 
ity was  conferred  to  allow  other  railways,  when  the  company 
saw  fit,  to  run  their  engines  and  cars  on  its  tracks.  It  did  not 
contemplate  a  lease,  but  simply  a  license. 

This  being  so,  the  right  to  lease,  if  it  exists  at  all,  must  be 
found  in  the  general  law.  There  are  seven  acts  of  the  legisla- 
ture in  this  state  bearing  upon  the  subject  of  the  leasing  of 
railway?. 

The  first  is  that  of  1857-8,  p.  5,  heretofore  set  out,  which, 
however,  only  empowers  one  railway  to  lease  another.  It  does 
not  authorize  the  lease  of  their  own  road  to  another  company. 

The  second  is  that  of  1867—8,  p.  92,  heretofore  set  out, 
which,  however,  did  not  confer  the  power  upon  railways  to 
lease  their  tracks,  etc.,  but  simpty  regulated  the  exercise  of 
that  power  among  roads  already  possessing  it. 

The  third  is  that  of  1869-70,  ch.  49,  p.  327,  as  heretofore 
set  out,  which,  however,  only  related  to  the  leasing  by  one 
railway  of  another  railway. 

The  fourth  is  that  of  1881,  p.  10,  ch.  9,  as  heretofore  set 
out,  which  only  authorized  railways  to  lease  other  railways. 
It  did  not  authorize  a  railway  to  lease  its  tracks  to  another 
company. 

The  fifth  is  that  of  1887,  ch.  198,  p.  329,  and  which  is  the 
only  act  giving  the  authority  in  this  state.  It  provides  that 
"  all  corporations  now  or  hereafter  existing  under  the  laws  of 
this  state,  whether  incorporated  under  special  or  general  laws 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     841 

of  the  state,  shall  have  the  power,  and  they  are  hereby  author- 
ized and  empowered  to  lease  and  dispose  of  their  proporty  and 
franchises,  or  any  part  thereof,  to  any  corporation  of  this  or 
any  other  state  engaged  in  or  carrying  on,  or  authorized  by  its 
charter  to  carry  on,  in  this  or  any  other  state,  the  same  gen- 
eral business  as  is  authorized  by  the  charter  of  any  such  lessor 
corporation  -  — ;  Provided,  however,  That  any  such  leases 
or  contracts,  when  made  by  or  under  the  direction  of  the  board 
of  directors  of  the  contracting  corporation,  shall  be  authorized  or 
approved  by  the  vote  of  a  majority  in  amount  of  the  stock  of 
the  lessor  corporation  present  or  represented  at  a  regular  or 
called  meeting  of  the  stockholders  of  said  corporation,  and  pro- 
vided further,  that  sixty  days  notice  of  such  meeting  be  given 
in  a  Memphis,  Knoxvilleand  Nashville  daily  newspaper  of  the 
time,  place  and  purpose  of  such  meeting,'1  etc.  Code  Tenn. 
(Shannon),  §  2043. 

The  sixth  and  seventh  acts  are  those  heretofore  set  out  as 
passed  in  1891  on  pp.  146,  274,  respectively.  These  acts, 
however,  only  relate  to  the  leasing  by  one  i  ail  way  of  another. 
They  do  not  authorize  a  railway  to  lease  its  road  to  another. 

Same.    Who  to  authorize,  stockholders  or  directors ;  vote 

necessary. — As  will  be  seen,  therefore,  the  act  of  Tenn.  1887, 
p.  329,  ch.  198,  above  set  out,  is  the  only  authority  now  ex- 
isting by  statute  in  this  state  authorizing  a  railway  to  lease  its 
road  to  another.  This  being  the  only  act,  its  provisions  must 
be  strictly  followed,  and  the  president  and  directors  of  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  cannot,  by  them- 
selves, perfect  a  valid  and  binding  lease  of  the  road  to  another 
company  without  the  authority  or  approval  of  a  vote  of  a  ma- 
jority in  amount  of  the  stock  of  the  company  present  or  rep- 
resented at  a  regular  or  called  meeting  of  the  stockholders,  and 
that  sixty  days'  notice  of  such  meeting  must  l>e  given  in  a 
Memphis,  Knoxville,  and  Nashville  daily  newspaper  of  the  time, 
place,  and  purpose  of  such  meeting. 

Prior  to  the  acts  of  Tenn.  1887,  ch.  198,  above  referred  to,  there  was 
no  general  law  authorizing  a  railway  to  lease  its  road,  or  any  part 
thereof,  or  even  its  joint  use,  to  another  company.  Hence,  when  this 
company  desired  to  convey  a  joint  use  of  its  tracks  to  the  Memphis  A 


842  LEASES,    ETC. 

Charleston  Railroad  Company,  from  Stevenson,  Ala.,  to  Chattanooga,  a 
special  act  had  to  be  passed  authorizing-  it,  which  was  done  as  per  acts 
Tenn.  1857-8,  ch.  150.  It  gave  authority  to  the  Nashville  &  Chattanooga 
Railroad  to  contract  with  the  Memphis  &  Charleston  Railroad  for  the 
joint  use  of  the  track  on  such  terms  as  the  roads  might  agree  upon. 

Power  of  Nashville,  Chattanooga  &  St.  Louis  Railway  to 
lease  its  purchased  or  leased  roads  in  Tennessee.— The  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  has  purchased  and 
leased  many  railroads  in  the  state  of  Tennessee,  together  with 
all  their  rights,  privileges,  and  franchises.  In  ascertaining  its 
power  to  lease  or  sell  those  roads  to  other  companies  regard 
must  also  be  had  to  their  charters,  amendments,  etc.,  as  well 
as  to  the  laws  of  Tennessee,  affecting  them.  In  other  words,  as 
to  the  lines  of  the  roads  so  purchased,  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  would  be  vested  with  all  the  powers 
and  privileges  and  subject  to  all  the  duties  and  liawb'ties  of  the 
respective  original  companies.  If  they  originally  had  the 
power  to  lease  or  sell,  then  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  would  have  that  power  as  to  their  particular 
lines  as  fully  and  completely  as  the  original  company  or  com- 
panies had.  Roger*  v.  Nashville,  Chattanooga  A  St.  Louis 
Railway  et  al.,  decided  Nov.  9,  1898,  by  the  United  States 
circuit  court  of  appeals,  sitting  at  Cincinnati,  but  which  opin- 
ion has  not  as  yet  been  reported.  See  also  15  Lea  (Tenn.), 
37;  112  U.  S.,  610. 

The  same  would  be  true  as  to  the  lines  of  any  railroads  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  has  leased  or 
may  hereafter  lease  in  Tennessee,  if  all  their  rights,  powers, 
privileges,  and  franchises  passed  in  the  absence  of  any  clause  in 
the  lease  prohibiting  subleasing.  Even  should  there  be  a 
clause,  however,  prohibiting  subleasing,  that  would  not  pre- 
vent a  mortgage  or  assignment  of  the  entire  leasehold  interest, 
as  that  would  be  in  no  manner  a  violation  of  a  covenant  not  to 
sublet.  27  Barb.  (N.  Y.),  415;  25  N.  J.  L.  (1  Dutch),  291, 
285;  33  N.  J.  L.  (4  vr.),  254;  47  Minn.,  189;  15  L.  R.  A., 
236;  16  Johns,  159;  1  Wood  on  Land  and  Tenant,  sec. 
258,  327;  Taylor  on  Land  and  Tenant,  sec.  16;  129  111.,  318; 
14  Lea  (Tenn.),  92;  9  Lea  (Tenn.),  1. 


GENERAL   POWERS   OF   THE    X.,    C.    A   ST.    L.    RY.  843 

Railways  may  lease  rolling  stock  and  equipments,  and  pro- 
vide for  conditional  sale  thereof.-  For  terms  and  conditions, 
sec  heading  "Sale,"  herein  and  acts  Tenn.,  1885,  ch.  9ti. 

ALABAMA  ACTS  AS  TO  LEASING. 

[In  Alabama.]  Power  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  lease  other  roads,  or  to  lease  its  own  road, 

in  Alabama — In  discussing  this  it  is  necessary  to  bear  in  mind 
that,  as  to  its  main  line,  the  Nashville,  Chattanooga  &  St.  Louis 
Bail  way  is  a  foreign  corporation  in  Alabama,  though,  as  to  the 
lines  of  those  Alabama  railroads  it  has  purchased,  it  is  a  do- 
mestic corporation  there.  A  corporation  is  not  incorporated 
in  a  foreign  state  simply  by  the  purchase  or  lease  of  a  domestic 
railroad  of  that  state  (Elliott  on  Railroads,  sec.  26;  1  Hilton 
(N.  Y.),  62;  30  N.  J.  L.,  473;  31  N.  J.  L.,  531;  32  Ohio,  St. 
468;  50  Pa.  St.,  26;  see,  however,  85  Tenn.,  189);  but  it 
would  be  domesticated  as  to  the  lines  of  the  roads  so  purchased, 
and,  hence,  no  suit  growing  out  of  the  operation  of  a  road  so 
purchased  could  be  removed  to  the  federal  court  on  the  ground 
of  "  nonresidence. "  108  U.  S.,  436;  14  Minn.,  303;  43 
Mich.,  354;  1  Wall.,  40;  12  Wall.,  65,  82.  See  also  90  Ga., 
523;  76  Ga.,  99;  9  Am.  &  Eng.  II.  11.  Cases,  201;  53  Ala., 
237,;  21  Law  Rep.,  138;  3  Tenn.  Ch.,  602;  59  Ga.,  263;  2 
Woods,  409;  30  Fed.  Cases,  73. 

A  railroad  chartered  by  two  states  is  a  citizen  of  each.     118  U.  S.,  161. 

It  is  true  the  State  of  Alabama  authorized  the  Nashville, 
Chattanooga  &  St.  Railway  to  build  its  main  line  in  that  state, 
and  conferred  upon  it  "all  the  rights,  privileges,  immunities," 
etc.,  of  its  Tennessee  charter  (see  p.  55  et  wy.  herein),  but  this 
did  not  domesticate  the  main  line  of  the  Nashville,  Chattanooga 
&  St.  Louis  Railway  in  Alabama,  nor  did  its  subsequent  pur- 
chase of  the  Tennessee  &  Coosa  Railroad,  the  Middle  Tennessee 
&  Alabama  Railroad,  or  the  Huntsville  «&  Elora  Railroad.  32 
Fed.  Rep.,  849;  21  Fed.  Rep..  817;  20  Am.  &  Eng.  R.  R. 
Cases,  597;  22  Fed.  Rep.,  353;  46  Mich.,  224;  76  Ala.,  388; 
13  Am.  &  Eng.  R.  R.  Cases,  296;  23  Am.  &  Eng.  R.  R. 


844  LEASES,    ETC. 

Cases,  487:  49  N.  J.  L.,  193;  129  Pa.  St.,  463;  18  Alt.  Rep., 
412.  See  also  118  U.  S.,  290;  104  U.  S.,  5. 

Same.    Power  as  to  its  main  line,  to  lease.— The  Nashville, 

Chattanooga  &  St.  Louis  Railway  proper  being  a  foreign  corpora- 
tion in  Alabama,  as  heretofore  explained,  reference  must  be  hud 
to  the  law  of  its  organization  as  well  as  to  the  general  powers 
conferred  upon  it  in  the  state  of  its  creation  in  determining  its 
power  to  lease  in  Alabama.  Corporations  going  beyond  the 
jurisdiction  that  created  them  can  ordinarily  do  only  those  things 
which,  by  express  grant  or  necessary  implication,  they  are  au- 
thorized or  empowered  to  do  by  the  laws  of  the  state  granting 
their  charters.  36  Am.  &Eng.  R.  R.  Cases,  449;  74  Texas,  474; 
8  S.  W.  Rep.,  533;  35  Kas.,  236;  10  Pac.  Rep.,  596;  24  Am. 
&  Eng.  R.  R.  Cases,  34;  3  Head  (Tenn. ),  337;  72  III.,  50;  22 
Am.  Rep.,  133;  29  Barb.  (N.  Y.),  650;  Thompson  on  Corp., 
sec.  7920;  1  R.  (Ky.),  8. 

It  has  been  held,  however,  that  a  foreign  corporation  author- 
ized by  an  act  of  the  Assembly  of  the  State  it  desires  to  enter 
to  construct  a  portion  of  its  road  through  the  State,  is  entitled 
to  the  same  rights  and  privileges  as  domestic  corporations.  6 
Watts  &  S.  (Pa.),  101;  33  Pa.  St.,  175;  14  Pa.  St.,  65;  6 
Whart.  (Pa.),  45;  14  How.  (U.  S.),  80. 

But  a  foreign  corporation  cannot  by  comity  exercise  powers 
within  a  state  which  a  domestic  corporation  would  be  prevented 
from  exercising  under  the  constitution  of  the  state.  52  Am. 
&  Eng.  R.  R.  Cases,  115;  50  Fed.  Rep.,  338. 

It  may  be  done,  however,  by  express  legal  permit  from  the 
legislature. 

From  the  foregoing  it  will  clearly  appear  that  the  power  of 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  proper  to  lease 
its  road,  or  to  lease  other  roads  in  Alabama,  must  largely  de- 
pend on  the  powers  it  possesses  in  Tennessee.  As  it  has  here- 
tofore been  shown  that  it  possesses  those  powers  in  Tennessee, 
it  follows  that  it  possesses  them  there  in  the  absence  of  any 
legal  legislation  to  the  contrary,  which  does  not  now  exist. 

1.  Lease  of  part  of  line. — If  the  power  to  lease  exists,  the  power  to 
lease  a  part  of  the  line  instead  of  the  whole  also  exists.  Ill  N.  Y.,  1,  64; 
83  la.,  720;  50  Ind.,  85.  See  also  77  N.  Y.,  232;  45  Colo.,  365;  37  Ga.,  644, 


GENERAL    POWERS   OF   THE    N.,    C.    A   ST.    L.    RV. 

2.  Both  roads  must  have  power. — In  order  to  lease  pr  sell  a  road  the 
lessor  or  vendor  company  must  have  power  to  lease  or  sell,  and  the  lessee 
or  vendee  company  must  have  power  to  accept  the  lease  or  to  buy.  161 
U.  S.,  086;  99  Ky.,  570. 

Same,    power  to  lease  its  purchased  roads  in  Alabama.— 

The  Nashville,  Chattanooga  &  St.  Louis  Railway  lias  purchased 
the  Tennessee  &  Coosa  Railroad  (see  p.  287  et  #<?</.,  herein),  the 
Huntsville  &  Elora  Railroad  (see  p.  214  et  wy.,  herein},  and 
the  Middle  Tennessee  &  Alabama  Railroad  (see  p.  406  et  xeq.i 
herein),  all  of  which  are  domestic  corporations  of  Alabama, 
together  with  all  of  their  rights,  privileges,  and  franchises.  In 
ascertaining  the  power  of  the  said  Nashville,  Chattanooga  & 
St.  Louis  Railway  to  lease  those  roads  to  other  companies,  re- 
gard must  also  be  had  to  the  la\v  of  the  organization  of  said 
domestic  companies  as  well  as  to  the  laws  of  Alabama  affecting 
them.  In  other  words,  as  to  the  lines  of  those  roads  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  would  be  vested  with 
all  the  powers  and  privileges,  and  subject  to  all  the  duties  and 
liabilities,  of  the  respective  original  companies.  If  the  compa- 
nies originally  had  the  power  to  lease  or  sell,  then  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway,  as  the  legal  owner  of 
all  the  rights,  powers,  privileges,  and  franchises  thereof,  would 
also  have  that  power  as  to  those  particular  lines  as  fully  and 
as  completely  as  the  original  companies  had.  AV/'v*  v.  JV., 
C.  <&  St.  L.  Ry.,  decided  November  9,  1S98,  by  United  States 
circuit  court  of  appeals,  sitting  at  Cincinnati,  but  which  opin- 
ion has  not  yet  been  reported.  See,  also,  15  Lea  (Tenn.),  37; 
112  U.  S.,  610. 

The  same  would  be  true  of  any  other  railroad  it  may  purchase  in  Ala- 
bama. 

Same.    Power  to  sublease  any  road  it  may  lease.— The 

same  would  l>e  true  as  to  the  lines  of  any  roads  the  Nashville, 
Chattanooga  <&  St.  Louis  Railway  might  lease  in  Alabama  if 
all  their  rights,  powers,  privileges,  and  franchises  passed,  in 
the  absence  of  any  clause  in  the  lease  prohibiting  subleasing. 
Even  should  there  be  a  clause,  however,  prohibiting  subleasing, 
that  would  not  prevent  a  mortgage  or  assignment  of  the  entire 


846  LEASES,    ETC. 

leasehold  interest,  as  that  would  be  in  no  manner  a  violation 
of  the  covenant  not  to  sublet.  27  Barb.  (N.  Y.),  415;  25  N. 
J.  L.  (1  Dutch),  291,  285;  33  N.  J.  L.  (4  Vr.),  254;  47  Minn., 
189;  15  L.  R.  A.,  236;  16  Johns,  159;  1  Wood  on  Landlord 
&  Tenant,  sees.  258,  327;  Taylor  on  Landlord  &  Tenant,  sec. 
16;  129  111.,  318;  14  Lea  (Tenn.),  92;  9  Lea  (Tenn.),  1. 

May  lease,  purchase,  aid,  or  take  stock  in  other  roads, 

by  Alabama  acts. —  A  corporation,  chartered  under  the 
laws  of  this  or  any  other  state  heretofore  or  hereafter  created 
for  the  purpose  of  building,  constructing,  or  operating  a  rail- 
road, may,  at  any  time,  by  means  of  subscription  to  the  capital 
of  any  other  corporation  or  company,  or  otherwise,  aid  such 
corporation  or  company  in  the  construction  of  its  railroad,  for 
the  purpose  of  forming  a  connection  with  the  road  owned  by 
such  corporation  or  company  furnishing  aid;  or  any  railroad 
corporation,  organized  in  pursuance  of  the  laws  of  this  or  any 
other  state,  may  lease  or  purchase  any  part  or  all  of  any  rail- 
road constructed  by  any  other  corporation  or  company,  if  the 
lines  of  such  road  are  continuous  or  connected,  upon  such 
terms  and  conditions  as  may  be  agreed  on  between  the  corpo- 
rations or  companies  respectively;  or  any  two  or  more  rail  road 
corporations  or  companies,  whose  lines  are  so  connected,  may 
enter  into  any  arrangement  for  their  common  benefit,  consistent 
with,  and  calculated  to  promote  the  objects  for  which  they 
were  created  ;  but  no  such  aid  shall  be  furnished,  nor  any  pur- 
chase, lease,  or  arrangement  perfected,  until  a  meeting  of  the 
stockholders  of  each  of  such  corporations  or  companies  has 
been  called  by  the  directors  thereof,  at  such  time  and  place, 
and  in  such  manner  as  they  shall  designate;  and  the  holders  of 
a  majority  in  value  of  the  stock  of  such  corporation  or  com- 
pany, represented  at  such  meeting,  in  person  or  by  proxy,  and 
voting  thereat,  shall  have  assented  thereto.  Code  Ala.,  1896, 
§1170. 

1 .  Without  statutory  aid,  railroad  has  no  power  to  lease  its  prop- 
erty.    88  Ala.,  572;  101  Ala.,  607. 

2.  Lease  invalid  unless  both  corporations  follow  above  statute.     10 
Ala.,  607. 

3.  The  above  section  doubtless  authorizes  leases  for  any  reasonable 


GENERAL    POWERS   OF    THE    N.,    C.    A    ST.    L.    RY.  847 

time,  though  section  1033  of  the  same  code  provides  that:  '•  No  leasehold 
estate  can  be  created  for  a  longer  term  than  twenty  years,  though  if 
made  longer  it  is  only  void  as  to  the  excess.1'  83  Ala.,  290. 

4.  For  powers  conferred  on  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way by  state  of  Alabama,  see  pp.  55-60.  herein. 

5.  By  Acts  Alabama,   1898-99,  No.  408,  p.  28,  domestic  corporations 
were  authorized  to  sell  their  railroads  to  foreign  corporations  iu  a  method 
theiein  set  out. 

6.  Power  to  lease  purchased  road. — The  Nashville,  Chattanooga  <fe 
St.    Louis  Railway  has  purchased  several   roads  in  Alabama,  together 
with  all  their  rights,  powers,  privileges,  and  franchises.     In  such  cases, 
the  power  to  lease  would  also  depend  upon  the  law  of  their  original 
organ  ization.     In  other  words,  as  to  the  line  of  such  roads  the  Nashville, 
Chattanooga  &  St.  Louis  Railway,  would  be  vested  with  all  the  powers 
and  privileges  and  subject  to  all  the  duties  and  liabilities  of  said  original 
company.     If  the  road  so  purchased  originally  had  the  power  to  lease 
or  sell,  then  the  Nashville,  Chattanooga  &  St  Louis  Railway  would  have 
that  power  as  to  that  particular  line.     The  charters  of  such  companies 
therefore  must  also  be  looked  to.     15  Lea,  (Tenn.).  37;  112  U.  S.,  610. 
See,  alsc,  case  of  Roycrs  v.  N.,  C.  &  St.  L.  Ry.,  decided  Nov.  9,  1898,  by 
the  United  States  circuit  court  of  appeals,  sitting  at  Cincinnati,  but  which 
case  has  not  yet  been  reported. 

Same.     May  also  indorse  or  guarantee  rentals,  bonds, 

etc.,    in   Alabama. — Any    railroad    company   incorporated    by 

the  laws  of  any  other  state  and  now  owning1  or  operating,  or 
which  is  or  may  be  authorized  to  own  or  operate,  by  lease  or 
otherwise,  any  railroad  in  this  state,  is  authorized  and  em- 
powered, upon  the  resolution  of  its  board  of  directors,  to  aid 
any  railroad  company  incorporated  under  any  general  or  special 
law  of  this  state,  in  the  construction,  renovation  or  operation 
of  its  railroad,  by  the  indorsement  or  guaranty  of  its  securi- 
ties which  have  been  or  may  be  issued  for  such  purpose,  in 
such  manner  as  may  be  agreed  upon  by  the  board  of  directors 
of  the  contracting  companies,  or  by  leasing,  or  by  guaranteeing 
the  rentals  of  any  lease  of  any  such  railroad,  on  such  terms  as 
may  IK?  agreed  upon  by  the  respective  boards  of  directors. 
Code  Ala.  1896,  §1171. 

GEORGIA  ACTS  AS  TO  LEASING. 

[In  Georgia.]    Power  of  Nashville,  Chattanooga  &  St.  Louis 
Railway  to  lease  other  roads,  or  to  lease  its  own  road  in 

Georgia. — In  discussing  this  it  is  necessary  to  bear  in  mind  that, 


848  LEASES,    ETC. 

as  to  its  main  line,  the  Nashville,  Chattanooga  &  St.  Louis 
Railway  is  a  foreign  corporation  in  Georgia,  though,  as  to  the 
lines  of  those  Georgia  railroads  it  has  purchased  or  leased,  it  is 
a  domestic  corporation  there.  A  corporation  is  not  incorporated 
in  a  foreign  state  simply  by  the  purchase  or  lease  of  a  domestic 
railroad  of  that  state.  Elliott  on  Railroads,  sec.  26;  1  Hilton 
(N.  Y.),  62;  30  N.  J.  L..  473;  31  N.  J.  L.,  531;  32  Ohio  St., 
468;  58  Pa.  St.,  26.  See,  however,  85  Tenn.,  189;  hut  it 
would  be  domesticated  as  to  the  line  of  the  road  so  purchased  or 
leased,  and  hence  no  suit  growing  out  of  the  operation  of  the 
line  so  purchased  could  be  removed  to  the  federal  court  upon 
the  ground  of  "  nonresidence. "  108  U.  S.  R.,  436;  14  Minn., 
303;  43  Mich.,  354;  1  Wall.,  40;  12  Wall.,  65,  82;  see,  also, 
90  Ga.,  523;  76  Gu.,  99;  9  Am.  &  Eng.  R.  R.  C.,  201;  53 
Ala.,  237;  21  Law  Rep.,  138;  3  Tenn.  Chy.,  602;  59  Ga., 
263,  and  74  Ga.,  634,  which  latter  case  was  reversed  by 
federal  court.  2  Woods,  409;  30  Fed.  Cas.,  73. 

A  railroad  chartered  by  two  states  is  a  citizen  of  each.     118  U.  SM  161. 

It  is  true  the  state  of  Georgia  authorized  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  to  build  its  main  line  in  that  state, 
and  conferred  upon  it  "  all  the  rights,  privileges,  and  immuni- 
ties," etc.,  of  its  Tennessee  charter.  See  p.  55,  et  sey.,  herein; 
but  this  did  not  domesticate  the  main  line  of  the  Nashville,  Chatta- 
nooga &  St.  Louis  Railway  in  Georgia,  nor  did  its  subsequent 
purchase  of  the  Rome  railroad.  32  Feel.  Rep.,  849;  21  Fed. 
Rep.,  817;  20  Am.  &  Eng.  R.  R.  C.,  597;  22  Fed.  Rep.,  353; 
46  Mich.,  224;  76  Ala.,  388;  13  Am.  &  Eng.  R.  R.  C.,  296; 
23  Am.  &  Eng.  R.  R.  C.,  487;  49  N.  J.  L.,  193;  129  Pa.  St., 
463;  18  Atl.  Rep.,  412;  see,  also,  118  U.  S.,  290;  104  U.  S.,  5. 

Same.    Power  as  to  its  main  line  to  lease.— The  Nashville, 

Chattanooga  &  St.  Louis  Railway  proper  being  a  foreign  cor- 
poration in  Georgia,  as  heretofore  explained,  reference  must  be 
had  to  the  law  of  its  organization,  as  well  as  to  the  general 
powers  conferred  upon  it  in  the  state  of  its  creation,  in  deter- 
mining its  power  to  lease  in  Georgia.  Corporations  acting  be- 
yond the  jurisdiction  that  created  them  can  do  only  those  things 
which,  by  express  grant  or  necessary  implication,  they  are  au- 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RY. 

thorized  or  empowered  to  do  by  the  laws  of  the  state  granting 
their  charters.  36  Am.  &  Eng.  R.  R.  Cas.,  449;  74  Texas,  474; 
8  S.  W.  R.,  533;  35  Kan.,  236;  10  Pac.  Rep.,  596;  24  Am. 
&  Eng.  R.  R.  Cas.,  34;  3  Head  (Tenn.),  337;  72  111.,  50;  22 
Am.  Rep.,  133;  29  Barb.  (N.  Y.),  650;  Thompson  on  Corp., 
sec.  7920;  1  R.  (Ky.),  8. 

It  has  been  held,  however,  that  a  foreign  corporation,  au- 
thorized by  an  act  of  the  assembly  of  the  state  it  desires  to 
enter,  to  construct  a  portion  of  its  road  through  the  state,  is 
entitled  to  the  same  rights  and  privileges  as  domestic  corpora- 
tions. 33  Pa.  St.,  175;  6  Watts  &  S.  (Pa.),  101;  14  Pa.  St., 
65;  6  Whart.  (Pa.),  45;  14  How.  (U.  S.),  80. 

But  a  foreign  corporation  cannot,  by  comity,  exercise  powers 
within  the  state  which  a  domestic  corporation  would  be  pre- 
vented from  exercising  under  the  constitution  of  the  state.  52 
Am.  &  Eng.  R.  R.  Cas.,  115;  50  Fed.  Rep.,  338. 

See  g§  1847,  1850,  code  Ga.,  1895,  on  this  line,  further  on  in  this  chap* 
ter. 

It  may  be  done,  however,  by  express  legal  permit  from  the 
legislature. 

From  the  foregoing  it  will  clearly  appear  that  the  power  of 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  proper  to  lease 
its  road,  or  to  lease  other  roads  in  Georgia,  must  largely  depend 
on  the  powers  its  possesses  in  Tennessee.  As  it  has  heretofore 
been  shown  that  it  possesses  those  powers  in  Tennessee,  it  would 
follow  that  it  possesses  them  there,  in  the  absence  of  any  legal 
legislation  to  the  contrary,  which  does  not  now  exist.  See 
43  Ga.,  605,  651;  70  Ga.,  464;  1  R.  (Ky.),  8. 

1.  Both  roads  must  have  power. — In  order  to  lease  or  sell  a  road,  the 
lessor  or  vendor  company  must  have  power  to  lease  or  sell,  and  the  lessee 
or  vendee  company  must  have  power  to  accept  the  lease  or  to  buy.     161 
U.  S..  686;  99  Ky.,  570. 

2.  Lease  of  part  of  line. — If  the  power  to  lease  exists,  the  power  to 
lease  a  part  of  the  line,  instead  of  the  whole,  also  exists.     Ill  N.  Y., 
1,  64;  83  Iowa,  720;  50  Ind.,  85.     See,  also,  77  N.  Y.,  233;  45  Cal.,  365;  37 
Ga.,  644;  Cook  on  Corp.  (4th  ed.),  sec.  894. 

Same.    Power  to  lease  Its  purchased  or  leased  roads.— The 

Nashville,  Chattanooga  &  St.  Louis  Railway  has  purchased  the 

54 


850  LEASES,    ETC. 

Rome  Railroad  (see  p.  379,  herein),  a  corporation  of  Georgia, 
together  with  all  its  rights,  privileges,  and  franchises.  In  as- 
certaining the  power  of  the  said  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  lease  that  road  to  another  company,  regard 
must  also  be  had  to  the  law  of  the  organization  of  the  Rome 
Railroad  Company,  as  well  as  the  laws  of  Georgia  affecting  it. 
In  other  words,  as  to  the  line  of  that  road,  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  would  be  vested  with  all  the  pow- 
ers and  privileges,  and  subject  to  all  the  duties  and  liabilities, 
of  the  original  company.  If  the  Rome  Railroad  Company 
originally  had  the  power  to  lease  or  sell,  then  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  would  have  that  power,  as  to 
that  particular  line,  as  fully  as  the  original  company  had. 
Rogers  v.  N.,  C.  &  St.  L.  Ey.,  decided  November  9,  1898, 
by  the  United  States  circuit  court  of  appeals,  sitting  at  Cincin- 
nati, but  which  opinion  has  not  yet  been  reported.  See,  also, 
15  Lea  (Tenn.),  37;  112  U.  S.,  610. 

The  same  would  be  true  of  any  other  railroad  it  may  purchase  in 
Georgia. 

The  same  would  be  true  as  to  the  lines  of  any  roads  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  might  lease  in  Georgia, 
if  all  their  rights,  powers,  privileges,  and  franchises  passed,  in 
the  absence  of  any  clause  in  the  lease  prohibiting  subleasing. 
Even  should  there  be  a  clause,  however,  prohibiting  subleasing 
(as  was  done  in  the  lease  to  the  Western  &  Atlantic  Railroad), 
that  would  not  prevent  a  mortgage  or  assignment  of  the  entire 
leasehold  interest,  as  that  would  be  in  no  manner  a  violation  of 
a  covenant  not  to  sublet.  27  Barb.  (N.  Y. ),  415;  25  N.  J.  L. 
(1  Dutch),  291,  285;  33  N.  J.  D.  (4  Vr.),  254;  47  Minn.,  189; 
15  L.  R.  A.,  236;  16  Johns.,  159,  1  Wood  on  Land,  and  Ten- 
ant, sees.  258,  327;  Taylor  on  Land,  and  Tenant,  sec.  16;  129 
111.,  318;  14  Lea  (Tenn.),  92;  9  Lea  (Tenn.),  1. 

Same.  Railroads  chartered  under  general  law  of  Georgia 
may  lease  other  roads  or  lease  its  own  road  to  others; 

When. — Any  railroad  company  incorporated  under  the  provis- 
ions of  this  article  shall  have  authority  to  sell,  lease,  assign  or 
transfer  its  stock,  property,  and  franchises  to,  or  to  consoli- 


GENERAL    POWERS    OF    THE    N. ,    C.    A    ST.    L.    RY.  851 

date  the  same  with,  those  of  any  other  railroad  company  incor- 
]x>rated  under  the  laws  of  this  or  any  other  state  or  of  the 
United  States,  whose  railroad  within  or  without  this  state  shall 
connect  with  or  form  a  continuous  line  with  the  railroad  of  the 
company  incorporated  under  this  law,  upon  such  terms  as  may 
be  agreed  upon,  and,  conversely,  any  such  corporation  organ- 
ized under  the  provisions  of  this  article  may  purchase,  lease,  con- 
solidate with,  and  absorb  and  merge  into  itself  the  stock,  prop- 
erty, and  franchises  of  any  other  railroad  company  incorpo- 
rated under  the  laws  of  this  or  any  other  state  or  the  United 
States,  whose  railroad  within  or  without  this  state  shall  connect 
with  or  form  a  continuous  line  or  system  with  the  railroad  of 
such  company  incorporated  under  this  law,  upon  such  terms  as 
may  be  agreed  upon.  And  it  shall  be  lawful  for  any  railroad 
company  or  corporation,  now  or  hereafter  formed  by  the  con- 
solidation of  one  or  more  railroad  companies,  or  corporations, 
organized  under  the  laws  of  this  state,  or  under  the  laws  of 
this  state  and  any  other  states,  with  one  or  more  companies  or 
corporations  organized  under  the  laws  of  any  other  state  or 
under  the  laws  of  this  and  other  states,  to  issue  its  bonds  and 
stock  as  provided  for  in  this  article,  in  such  amounts  as  they 
may  deem  necessary,  for  the  purpose  of  paying  or  exchanging 
the  same  for  or  retiring  .any  bonds  or  stocks  theretofore  issued 
by  either  of  the  said  companies  or  corporations  so  merged, 
purchased  or  consolidated,  or  for  any  other  purpose,  and  to 
the  amount  authorized  by  the  laws  of  the  state  under  which 
either  of  said  companies  or  corporations  so  consolidated  was 
organized,  and  to  secure  the  same,  in  case  of  bonds,  by  mort- 
gages or  trust  deeds  upon  its  real  or  personal  property,  fran- 
chises, rights,  and  privileges,  whether  within  or  without  this 
state;  Provided,  That  no  railroad  company  shall  make  any 
contract  under  the  provisions  of  this  section  with  any  other 
railroad  company  which  is  a  competing  line  that  is  calculated 
to  defeat  or  lessen  competition  in  this  state  or  to  encourage 
monopoly.  Georgia  code  (1895),  §  2179. 

Same.    May  lease  or  purchase  other  railroads.— "  Said 

railroad  company  shall  have  the  power  to  make  contracts  with 


852  LEASES,    ETC. 

any  railroad  company  which  has  constructed  or  shall  hereafter 
construct  any  railroad  within  this  state,  or  any  other  state, 
that  will  enable  said  company  to  run  their  roads  in  connection 
with  each  other,  and  merge  their  stocks,  or  to  consolidate  with 
any  such  company  within  or  without  this  state,  or  to  lease  or 
purchase  the  property  of  any  other  such  company  and  hold, 
use,  and  occupy  the  same  in  such  manner  as  they  may  deem 
most  beneficial  to  their  interest;  Provided,  That  no  railroad 
shall  purchase  a  competing  line  of  railroad,  or  enter  into  any 
contract  with  a  competing  line  of  railroad  calculated  to  defeat 
or  lessen  competition  in  this  state,  and  any  violation  of  this 
section  shall  subject  the  corporation  to  all  the  penalties  inci- 
dent to  such  violation  of  the  law."  Code  Ga.  1895  §  2173. 

Lessee  subject  to  burdens  of  lessor  corporations.— All  cor- 
porations, foreign  or  domestic,  operating  the  franchise  of  a 
corporation  chartered  by  this  state  are  subject  to  its  burdens, 
and  can  be  sued  when  and  where  and  for  like  causes  for  action 
for  which  suits  could  have  been  maintained  asrainst  such  other 

O 

corporation  were  it  in  possession  of  the  franchise  so  acquired 
or  usurped.  Code  Ga.  1895,  §  1863. 

Corporation  liable,  notwithstanding  sale  or  lease.— A  cor- 
poration charged  with  a  duty  to  the  public  cannot,  by  sale  or 
otherwise,  dispose  of  its  property  or  franchises  so  as  to  relieve 
itself  from  liability  for  acts  done  or  omitted,  without  legislative 
sanction  expressly  exempting  it  from  liability.  Code  Ga.  1895, 
§1864. 

Lessor  railroad  liable  for  acts  of  lessee,  although  authorized  by  legis- 
lature to  lease,  but  without  express  exemption  from  liability.  70  Ga., 
464. 

Foreign  corporations;  how  recognized  in  Georgia.— Cor- 
porations created  by  other  states  or  foreign  governments  are 
recognized  in  our  courts  only  by  comity,  and  so  long  as  the 
same  comity  is  extended  in  their  courts  to  corporations  created 
by  this  state.  Code  Ga.,  §  1846. 

The  existence  of  a  corporation  may  be  recognized  in  another  state 
and  there  contracted  with.  14  Ga. ,  328. 

Proof  of  diploma  of  foreign  medical  corporation.     27  Ga.,  76,  77. 
I?y  producing  charter  of  such  corporation.     59  Ga.,  100. 


CKXEKAL    POWERS    OF    THE    N.,    C.    A    ST.     I..     RV.  853 

Comity  controls  as  to  foreign  corporation's  right  to  sue  here.  23  Oa., 
448-458. 

Montgomery  *t  West  Point  Railroad  sued  in  Georgia  by  one  of  her 
citi/ens.  although  the  cause  of  action  originated  in  Alabama.  39  Ga., 
BM. 

Foreign  corporation  garnisheed  for  a  debt  it  may  owe  any  where  in 
the  state.  48  i  ia..  351. 

Specific  performance  cannot  be  enforced  against  a  domestic  corpora- 
tion as  to  contract  as  to  land  to  be  performed  in  another  state.  58  (la., 
323,  328. 

Cannot  recover  lands  in  Georgia  without  showing  power  under  foreign 
charter  to  hold  hinds.  66  Ga.,  529. 

Railroad  company  incorporated  under  act  of  1876  not  a  foreign  cor- 
poration. 72  Ga.,  423. 

Georgia  railroad  charter  authorizing  sale  of  franchises,  foreign  pur- 
chaser became  domestic  corporation.  74  Ga.,  634. 

Decree  against  corporation,  appointing  receiver  to  collect  assessments 
of  stock  subscriptions,  binding  on  nonresident  subscriber.  85  Ga.,  238. 

Same.    What  powers  they  may  not  exercise.— No  foreign 

corporation  shall  exercise  within  this  state  any  corporate  powers 
or  privileges  which,  by  the  constitution  or  laws  of  Georgia,  are 
denied  or  prohibited  to  corporations  created  by  this  state,  or 
the  exercise  of  which  is  contrary  to  the  public  policy  of  this 
state,  anything  in  the  charter  or  corporate  powers  of  the  for- 
eign corporation  to  the  contrary  notwithstanding.  Code  Ga. 
1895,  $1847. 

Same.  Penalty. — Whenever  any  foreign  corporation  shall 
exercise,  or  attempt  to  exercise,  within  this  state  any  corporate 
power  or  privilege  denied  or  prohibited  to  corporations  created 
by  this  state  by  the  constitution  or  laws  of  this  state,  or  con- 
trary to  the  public  policy  of  this  state,  it  shall  l>e  the  duty  of 
the  courts  to  declare  said  corporate  powers  or  privileges  in- 
valid and  of  no  force  or  effect  in  this  state,  and  to  restrain  or 
prohibit,  by  appropriate  process,  order,  or  judgment,  the  exer- 
cise of  said  corporate  powers  or  privileges  by  said  foreign  cor- 
poration, at  the  instance  of  any  party  at  interest,  or  at  the  in- 
stance of  the  attorney-general,  when  the  latter  shall  IK?  directed 
by  the  governor  to  proceed  to  that  end  in  the  name  of  the  state. 
Code  Ga.,  1895,  sec.  1848. 

Same.    Ownership  of  land  by  foreign  corporation  —Any 

foreign  corporation  or  corporations  incorporated   by  the  laws 


854  LEASES,    ETC. 

of  any  other  state,  and  claiming  to  own  lands  in  Georgia  in 
quantity  amounting  to  as  much  as  live  thousand  acres,  shall  be 
incorporated  by  the  laws  of  Georgia  within  twelve  months  after 
February  28,  1877;  and  on  their  failure  to  do  so,  the  State  of 
Georgia  will  not  consent  to  the  said  corporation  owning  the  said 
lands  so  located  in  her  territory.  And  any  foreign  corporation 
incorporated  by  the  laws  of  other  states,  who  shall  thereafter 
claim  to  own  land  in  the  State  of  Georgia  in  quantity  amount- 
ing to  five  thousand  acres  or  upwards,  shall  become  incorpo- 
rated by  the  laws  of  the  State  of  Georgia,  and  in  default 
thereof  Georgia  will  not  consent  that  said  foreign  corporation 
shall  own  said  lands  in  her  territory;  and  no  foreign  corpora- 
tion incorporated  by  the  laws  of  another  state  shall  own  more 
than  five  thousand  acres  of  land  except  upon  the  condition  of 
becoming  a  corporation  under  the  laws  of  Georgia;  Provided, 
That  this  section  shall  not  apply  to  any  foreign  corporation,  or 
any  corporation  incorporated  by  the  laws  of  any  other  state, 
engaged  in  the  business  of  lending  money  on  real  estate  secur- 
ity, nor  to  any  such  corporation  which,  holding  a  lien  upon 
real  estate  to  secure  the  payment  of  any  debt,  when  said  cor- 
poration, in  order  to  prevent  loss,  is  compelled  to  become  the 
purchaser  of  lands  covered  by  deed  or  mortgage  to  secure  a 
loan;  And  provided,  hmvever,  That  the  benefits  and  privileges 
of  the  foregoing  proviso  shall  not  apply  to  any  foreign  corpo- 
ration which  does  or  may  lend  money  in  this  state  at  a  greater 
rate  of  interest  than  eight  per  cent,  per  annum.  In  estimating 
the  amount  of  interest  charged,  there  shall  be  included  an}'  and 
all  commissions  or  fees  which  may  be  paid  to  said  company  or 
its  duly  authorized  agents.  CodeGa.,  1895,  sec.  1849. 

Borrower  cannot,  by  illegality  to  mortgage  Ji.  /a.,  question  right  of 
lender,  a  foreign  corporation,  to  own  more  than  five  thousand  acres. 
State  alone  can  make  the  question.  87  Ga.,  28. 

Same.    Charter  of  foreign  corporation,  how  far  binding  in 

Georgia. — Where  a  foreign  corporation  does  business  in  this 
state  and  relies  upon  provisions  in  its  charter  different  from 
those  imposed  by  the  laws  of  this  state,  under  similar  circum- 
stances, it  must  show  that  the  opposite  party  had  notice  of  such 


GENERAL    POWERS    OF   THE    N.,    C.    A    ST.    L.    BY.  855 

provisions  at  the  time  the  contract  was  made.  Code  Ga.  1895, 
§  1850. 

Railroads  using  the  same  terminal  tracks.— Two  or  more 

chartered  railway  companies,  whose  lines  terminate  in  the 
same  city,  may,  by  contract,  within  the  corporate  limit-,  use 
the  same  track  in  common,  with  or  without  common  owner- 
ship, and,  when  they  do  so,  the  company  owning  the  track  is 
not  responsible  to  its  employes  for  injuries  sustained  solely 
by  reason  of  the  negligent  use  of  the  track  by  the  employes 
of  the  other  company.  Code  Ga.  1895,  §  1865. 

Common  powers  of  corporations  under  Georgia  law.— 

All  corjKmitions  have  the  right  to  sue  and  be  sued,  to  have  and 
use  a  common  seal,  to  make  by-laws,  binding  on  their  own  mem- 
bers, not  inconsistent  with  the  laws  of  this  state  and  of  the  Tnited 
States;  to  receive  donations  by  gift  or  will;  to  puchase  and  hold 
such  property,  real  or  personal,  as  is  necessary  to  the  purpose 
of  their  organization,  and  to  do  all  such  acts  as  are  necessary 
for  the  legitimate  execution  of  this  purpose.  Code  (Ga.),  1895, 
sec.  1852. 

Ordinance  of  a  city  regulating  the  sale  of  gunpowder  is  valid.  4 
Ga.,  509.  A  railroad  corporation  can  make  contract  (17  Ga.,  574).  A  by- 
law asserting  a  lien  on  the  stock  of  the  members  is  binding  as  between 
the  corporators  (1  Ga.,  43).  But  a  by-law  infringing  upon  a  valid  statute 
relating  to  corporations  is  void  (12  Ga.,  404).  City  of  Augusta  has  power 
to  establish  such  by-laws  as  are  necessary,  and  not  repugnant  to  the 
constitution  and  laws  (38  Ga.,  542).  Where  by-law  valid,  but  society 
could  be  controlled  in  its  construction  and  enforcement  (38  Ga..  608). 
Where  no  individual  liability  is  created  by  the  charter  or  general  laws, 
a  by-law  of  the  corporation  cannot  impose  it  (40  Ga.,  98.)  When  the 
execution  of  a  morgage  by  the  agent  of  the  corporation  binds  the  corpo- 
ration (25  Ga  ,  316).  Agent  can  bind  the  corporation  by  note  if  acting 
within  sphere  of  his  powers,  or  there  is  after  ratification  of  it  by  the 
principal  (6  Ga.,  166).  Excursions  as  a  matter  of  trade  or  business  with 
the  public,  are  not  within  the  means  or  ends  for  which  a  church  was  in- 
corporated (63  Ga.,  186-194).  Where  a  contract  is  beyond  the  scope  of 
the  corporate  powers,  no  remedy  can  be  had  for  damages  for  breach  of 
(53  Ga.,  62">).  Suing  need  not  state  how  incorporated  or  aver  that  it  is  a 
corporation  (55  Ga.,  672).  In  suits  to  recover  on  subscription  to  stock, 
calls  for  should  be  clearly  proved,  but  need  not  show  that  a  certificate 
of  stock  has  been  tendered  the  subscriber  (56  Ga..  230).  Notice  Mto 
calls  in  relation  to  stock  subscriptions  (57  Ga.,  314).  Hy-laws  control 
officers  of,  where  they  accept  office  and  serve  under  such  by-law  known 


856  LEASES,    ETC. 

to  them  (58  Ga.,  240).  See  87  Ga.,  533.  Members  of  company  not  liable 
as  partners  under  summons  of  garnishment  directed  to  corporation  (69 
Ga..  751). 

Whether  corporation  (a  bank)  acted  ultra  vires  in  running  iron  works 
to  collect  debt  due  to  bank,  was  fairly  submitted  to  jury  (74  Ga.,  454). 
Defendant  sued  as  corporation  having  pleaded  afc>  such,  not  prejudiced  by 
incompetent  parole  proof  that  it  was  a  corporation  (88  Ga..  193).  Corpo- 
ration cannot,  ordinarily,  become  member  of  partnership  (74  Ga. ,  509; 
75  Ga.,  567). 

KENTUCKY  ACTS  AS  TO  LEASING. 

[In  Kentucky.]  Power  of  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  lease  its  road,  or  to  lease  other  roads  in 

Kentucky. — It  must  be  borne  in  mind  in  discussing  this  subject, 
that  the  Nashville,  Chattanooga  &  St.  Louis  Railway  proper 
never  extended  into  the  state  of  Kentucky.  It  purchased  the 
Nashville  &  Northwestern  Railroad,  which  extended  from  Nash- 
ville, Tenn.,  to  Hickman,  Ky.,  and  which  road  had  been  char- 
tered by  both  the  states  of  Tennessee  and  Kentucky  [see  p.  76 
herein],  and  leased  the  Paducah,  Tennessee  &  Alabama  Rail- 
road, a  corporation  of  Kentucky  [see  p.  487  herein],  but  the 
line  of  the  road  constructed  under  its  own  charter  never  ex- 
tended into  Kentucky. 

As  to  the  line  of  the  Nashville  &  Northwestern  Railroad  and 
the  Paducah,  Tennessee  &  Alabama  Railroad,  therefore,  it  is 
clear  it  has  become  a  domestic  corporation  of  Kentucky.  34 
Minn.,  303;  1  Wall.,  40;  108  U.  S.,  436;  43  Mich.,  354;  12 
Wall.,  65,  82;  90  Ga.,  523;  76  Ga.,  99;  9  Am.  &  Eng.  R.  R. 
C.,  201;  53  Ala.,  237;  21  Law  Rep.,  138;  3  Tenn.  Chy.,  602; 
59  Ga.,  263;  2  Woods,  409;  30  Fed.  Cas.,  73. 

A  railroad  chartered  by  two  states  is  a  citizen  of  each.  118  U.  S., 
161;  1  Black  (U.  S.),  286;  32  VV.  Va.,  164. 

As  to  its  main  line,  though  no  part  of  it  ever  extended  into 
Kentucky,  yet  when  the  Paducah,  Tennessee  &  Alabama  Rail- 
road was  leased  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way complied  with  §§  190,  570,  765,  and  841  of  the  code  of 
Ky.  1894,  the  provisions  of  which  are  set  out  further  on  in 
this  chapter.  It  is  probable  that  this  domesticated  the  Nash- 


CKNKKAL    I'OWKKS    OF    TMK    N.,    C.    A    ST.    L.    KY.  857 

ville,  Chattanooga  &  St.  Louis  Railway  proper  in  the  state  of 
Kentucky. 

Same.  Power,  as  to  its  main  line,  to  lease.— if  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  is  now  a  foreign  corpo- 
ration of  Kentucky,  which  is  extremely  doubtful,  as  heretofore 
explained,  reference  must  be  had  to  the  law  of  its  organization, 
as  well  as  to  the  general  powers  conferred  upon  it  in  the  state 
of  its  creation,  in  determining  its  power  to  lease  in  Kentucky. 
Corporations  acting  beyond  the  jurisdiction  that  created  them 
can  do  only  those  things  which,  by  express  grant  or  necessary 
implication,  they  are  authorized  or  empowered  to  do  by  the 
laws  of  the  state  granting  their  charters.  36  Am.  &  Eng.  R. 
R.  Cases,  449;  74  Texas,  474;  8  S.  W.  Rep., '533,  35  Kan., 
236;  10  Pac.  Rep.,  596;  24  Am.  &  Eng.  R.  R.  Cases,  34;  3 
Head  (Tenn.),  337;  72  111.,  50;  22  Am.  Rep.,  133;  29  Barb. 
(N.  Y.),  650;  Thompson  on  Corp.,  sec.  7920;  1  R.  (Ky.),  8. 

1.  If  it  is  a  domestic  corporation,  then  it  can  exercise,  not  only  all 
the  franchises  of  its  charter,  but  those  granted  by  the  general  laws  of 
Kentucky. 

2.  It  has  been  held,  however,  that  a  corporation  authorized  by  an  act 
of  the  general  assembly  of  the  state  it  desires  to  enter,  to  construct  a 
portion  of  its  road  through  the  state,  is  entitled  to  the  same  rights  and 
privileges  as  domestic  corporations.     33  Pa.  St..  175;  6  Watts  &  S.  (Pa.), 
101;  14  Pa.  St.,  65;  6  Whart.  (Pa.),  45;  14  How.  (U.  S.),  80. 

But  a  foreign  corporation  cannot  by  comity  exercise  powers 
within  the  state  which  a  domestic  corporation  would  be  pre- 
vented from  exercising  under  the  constitution  of  the  state.  52 
Am.  &  Eng.  11.  R.  Cases,  115;  50  Fed.  Rep.,  338. 

Nor  would  it  be  permitted  to  do  those  things  prohibited  by 
statute. 

It  may  be  done,  however,  by  express  legal  permit  from  the 
legislature. 

It  has  been  held  in  Kentucky  that  "the  right  to  hold,  and  the  mode 
of  acquiring  title  to,  land  depends  upon  the  i<  <  ret  xltnr;  that,  under  the 
rules  of  comity,  the  presumption  should  be  indulged  that  a  corporation 
of  one  state,  not  forbidden  by  the  law  of  its  being,  may  exercise  within 
any  other  state  the  general  powers  conferred  by  its  charter,  unless  pro- 
hibited by  direct  enactment  of  the  latter  state  or  its  public  policy  or 
settled  adjudications."  1  R.  (Ky.),  8. 


858  LEASES,    ETC. 

From  the  foregoing,  it  will  clearly  appear  that  the  power  of 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  proper  to 
lease  its  road  or  to  lease  other  roads  in  Kentucky,  whether  it 
be  treated  as  a  foreign  or  domestic  corporation  of  Kentucky, 
must  largely  depend  on  the  powers  it  possesses  in  Tennessee. 
As  it  has  heretofore  been  shown  that  it  possesses  those  powers 
in  Tennessee,  it  follows  'that  it  possesses  them  there,  in  the 
absence  of  any  legal  legislation  to  the  contrary,  which  does  not 
now  exist,  except  as  to  parallel  or  competing  lines.  Code  Ky. 
1894,  p.  139,  §201. 

1.  Lease  of  part  of  line. — If  the  power  to  lease  exists,  the  power  to 
lease  a  part  of  the  line  instead  of  the  whole  also  exists.     Ill  N.  Y.,  1,  64; 
83  Iowa,  720;  50  Ind..  85.    See.  also,  77  N.  Y.,  232;  45  Cal.,  3G5;  37  Ga.,  644. 

2.  Both  roads  must  have  power. — In  order  to  lease  or  sell  a  road,  the 
lessor  or  vendor  company  must  have  power  to  lease  or  sell,  and  the  les- 
see or  vendee  company  must  have  power  to  accept  the  lease  or  to  buy. 
161  U.  S.,  686;  97  Ky.,  675. 

3.  Lease  must  be  registered  in  the  secretary  of  state's  office  and  in 
county  clerk's  office  of  every  county  in  which  said  road,  or  any  part 
thereof,  lies.     Code  Ky.  1894.  §791. 

Same.    Power  to  lease  its  purchased  roads  in  Kentucky.— 

The  Nashville,  Chattanooga  &  St.  Louis  Railway  has  purchased 
the  Nashville  &  Northwestern  Railroad  (see  p.  76,  herein), 
which  had  in  turn  purchased  the  Hickman  &  Obion  Railroad 
(see  p.  77,  herein),  both  of  which  were  domestic  corporations 
of  Kentucky.  It  also  purchased  all  their  powers,  rights,  and 
franchises.  In  ascertaining,  therefore,  the  power  of  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  to  lease  those  roads  to 
other  companies,  regard  must  also  be  had  to  the  law  of  the  or- 
ganization of  said  domestic  companies  as  well  as  to  the  laws 
of  Kentucky  affecting  them.  In  other  words,  as  to  the  lines  of 
those  roads  the  Nashville,  Chattanooga  &  St.  Louis  Railway 
would  be  vested  with  all  the  powers  and  privileges,  and  subject 
to  all  the  duties  and  liabilities,  of  the  respective  original  com- 
panies. If  the  companies  originally  had  the  power  to  lease  or 
sell,  then  the  Nashville,  Chattanooga  &  St.  Louis  Railway,  as 
the  legal  owner  of  all  the  rights,  powers,  privileges,  and  fran- 
chises thereof,  would  also  have  that  power  as  to  those  particu- 
lar lines  as  fully  and  as  completely  as  the  original  companies 


GENERAL    TOWERS    OF   THE    N.,    C.    A    ST.    L.    RY. 

had.  Rtn/ers  v.  JV.,  6".  tfc  £/.  Z.  ./?//.,  decided  November  9, 
1898,  by  United  States  circuit  court  of  appeals,  sitting  at  Cin- 
cinnati, but  which  opinion  has  not  yet  been  reported.  See, 
also,  15  Lea  (Tenn.),  37;  112  U.  S  ,  610. 

The  same  would  be  true  of  any  other  railroad  it  ma}'  purchase  in  Ken- 
tucky. 

Same.    Power  to  sublease  any  road  it  may  lease.— The 

same  would  be  true  as  to  the  lines  of  any  roads  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  might  lease  in  Kentucky  if 
all  their  rights,  powers,  privileges,  and  franchises  passed,  in 
the  absence  of  any  clause  in  the  lease  prohibiting  subleasing. 
Even  should  there  be  a  clause,  however,  prohibiting  subleasing, 
that  would  not  prevent  a  mortgage  or  assignment  of  the  entire 
leasehold  interest,  as  that  would  be  in  no  manner  a  violation  of 
the  covenant  not  to  sublet.  27  Barb.  (N.  Y.),  415;  25  N.  J. 
L.  (1  Dutch),  291,  285;  33  N.  J.  L.  (4  Vr.),  254;  47  Minn., 
189;  15  L.  R.  A.,  236;  16  Johns,  159;  1  Wood  on  Landlord 
&  Tenant,  sees.  258,  327;  Taylor  on  Landlord  &  Tenant,  sec. 
16;  129  111.,  318:  14  Lea  (Tenn.),  92;  9  Lea,  (Tenn.),  1. 

Foreign  corporations,  however,  in  Kentucky  subject  to 
laws  relating  to  domestic  corporations.— "No  corporation 

organized  outside  the  limits  of  this  state  shall  be  allowed  to 
transact  business  within  the  state  on  more  favorable  conditions 
than  are  prescril>ed  by  law  to  similar  corporations  organized 
under  the  laws  of  this  commonwealth."  Code  Ky.  1894,  p. 
139;  constitution,  sec.  202. 

Lease  or  sale  of  franchise  in  Kentucky  does  not  affect  ex- 
isting liabilities. — No  corporation  shall  lease  or  alienate  any 
franchise  so  as  to  relieve  the  franchise  or  property  held  there- 
under from  the  liabilities  of  the  lessor  or  grantor,  lessee  or 
grantee,  contracted  or  incurred  in  the  operation,  use  or  enjoy- 
ment of  such  franchise,  or  any  of  it«  privileges.  Oxle  Ky. 
1894,  p.  136;  constitution  of  state,  sec.  203. 

Foreign  company  in  Kentucky  denied  right  to  hold  real 
estate  until  it  becomes  a  domestic  corporation.— No  railroad 

corporation  organized  under  the  laws  of  any  other  state,  or  of 
the  United  States,  and  doing  business,  or  proposing  to  do  busi- 


860  LEASES,    ETC. 

ness,  in  this  state,  shall  be  entitled  to   the  benefit  of  the  ri^ht 

77  ^ 

of  eminent  domain  or  have  power  to  acquire  the  right  of  way 
or  real  estate  for  depot  or  other  uses,  until  it  shall  have  become 
a  body-corporate  pursuant  to  and  in  accordance  with  the  laws 
of  this  commonwealth.  Code  Ky.  1894,  p.  141;  constitution 
of 'state,  sec.  211. 

Foreign  corporations  must  be  incorporated  in  Kentucky.— 

"No  company,  association,  or  corporation,  created  by  or 
organized  under  the  laws  or  authority  of  any  state  or  country 
other  than  this  state,  shall  possess,  control,  maintain,  or 
operate  any  railway,  or  part  thereof,  in  this  state  until,  by  in- 
corporation under  the  laws  of  this  state,  the  same  shall  have 
become  a  corporation,  citizen,  and  resident  of  this  state.  Any 
such  company,  association,  or  corporation  may,  for  the  purpose 
of  possessing,  controlling,  maintaining  or  operating  a  railway, 
or  part  thereof,  in  this  state,  become  a  corporation,  citizen  and 
resident  of  this  state  by  being  incorporated  in  the  manner  fol- 
lowing, namely:  By  filing  in  the  office  of  the  secretary  of  state, 
and  in  the  office  of  the  railroad  commission,  a  copy  of  the 
charter  or  articles  of  incorporation  of  such  company,  associa- 
tion or  corporation,  authenticated  by  its  seal  and  by  the  attesta- 
tion of  its  president  and  secretary,  and  thereupon,  and  by 
virtue  thereof,  such  company,  association,  or  corporation  shall 
at  once  become  and  be  a  corporation,  citizen  and  resident  of 
this  state.  The  secretary  of  state  shall  issue  to  such  corpora- 
tion a  certificate  of  such  incorporation."  Code  (Ky.),  1894, 
§841. 

1.  See  notes  to  second  section  below. 

2.  Section  842  of  Code  of  Kentucky,  1894,  provides  a  penalty  for  vio- 
lation of  above  section  of  not  less  than  SI, 000  for  each  day  or  part  there- 
of so  violated. 

Foreign  companies  must  accept  constitution  of  Kentucky ; 

When. — "  No  railroad  corporation  organized  or  created  by  or 
under  the  laws  of  any  other  state  shall  have  the  right  to  con- 
demn land  for,  or  acquire  the  right  of  way  for,  or  purchase  or 
hold  land  for  its  depots,  tracks,  or  other  purposes,  until  it 
shall  have  first  tiled  in  the  office  of  the  secretary  of  state  of 


t.KNERAL    1»0 \VKKS    OF    THE    N.,    C.    A    ST.     L.     BY. 

thi>  >tato,  in  the  manner  provided  in  the  first*  article  of  this 
chapter,  its  acceptance  of  the  constitution  of  this  state,  and 
shall  have  become  organized  as  a  corporation  under  the  laws  of 
this  state,  which  it  may  do  by  tiling  in  the  offices  of  the  secre- 
tary of  state  and  the  railroad  commission  articles  of  incorjx)- 
ration,  in  the  manner  and  form  provided  in  section  763  of  this 
article  (acceptance  of  constitution,  see  §  570  of  this  code). 
Code  (Ky.),  1894,  §765. 

See  notes  to  section  below. 

Same. — "  No  law  shall  be  passed  for  the  benefit  of,  or  in  the 
interest  of,  any  corporation  heretofore  created  or  organized  by 
or  under  the  laws  of  this  state  or  any  other  state,  nor  shall  any 
corporation  avail  itself  of  the  provisions  of  this  chapter,  unless 
such  corporation  shall  have  previously,  by  a  resolution  adopted 
by  its  board  of  directors  and  filed  in  the  office  of  the  secretary 
of  this  state,  accepted  the  provisions  of  the  constitution  of  this 
state,  and  such  resolution,  or  a  certified  copy  thereof,  shall  be 
evidence  for  and  against  such  corporation."  Code  Ky.  1894, 
§570. 

Above  sections  complied  with  in  leasing  Paducah,  Tennessee  & 
Alabama  Railroad. — After  the  lease  of  the  Paducah,  Tennessee  &.  Ala- 
bama Railroad  (see  p.  487  herein)  by  the  Nashville,  Chattanooga  A  St. 
Louis  Railway,  the  secretary  of  state  of  Kentucky  held  that,  under  sec. 
190  of  the  constitution  of  the  state,  and  under  \\  570,  765,  and  841  of  the 
code  of  Kentucky  above  set  out,  the  said  road  could  not  be  legally 
operated  until  all  of  said  sections  were  strictly  complied  with.  In  this 
he  was  clearly  wrong,  as  only  §841.  above  set  out,  is  necessary  to  be 
complied  with.  However,  to  avoid  trouble,  the  board  of  directors  of 
the  Nashville,  Chattanooga  &  St.  Louis  Railway,  on  January  21,  1899, 
accepted  the  constitution  of  Kentucky,  and  filed  a  copy  of  the  same, 
with  its  charter  properly  authenticated  and  attested,  with  the  secretary 
of  state,  and  Railroad  Commissioners,  on  February  25,  1899.  The  char- 
ter, properly  authenticated  and  attested,  had  been  offered  for  filing 
several  months  previously,  but  was  refused  by  the  secretary  of  state 
upon  the  ground  that  the  directors  of  the  railroad  had  not  accepted  the 
constitution  of  Kentucky. 


862  MORTGAGES. 


CHAPTER   LXXL 

MORTGAGES— WHAT  MAY  BE  MORTGAGED— VOTE  NECESSARY- 
POWER  TO,  GENERALLY. 

[For  rights  of,  and  what  passes  to,  purchaser  under  foreclosure  of,  see 
"Sales;"  "Purchase."] 

[in  Tennessee.]    Right  of  railways  to  mortgage  their 

property,  generally. — A  very  clear  line  of  distinction  is  drawn 
between  strictly  private  corporations  and  those  devoted  to  the 
discharge  of  public  duties,  in  so  far  as  their  right  to  mortgage 
their  property  is  concerned.  The  American  doctrine  recog- 
nizes the  implied  power  in  private  corporations  to  borrow 
money  for  its  corporate  purposes,  to  issue  evidences  of  debt 
therefor,  and,  by  necessary  implication,  to  mortgage  its  prop- 
erty to  secure  said  debts.  Not  so,  however,  with  railways. 
They  have  ordinarily  no  power  to  mortgage,  lease,  or  otherwise 
alien  their  property  and  franchises,  such  as  are  necessary  to  the 
performance  of  those  duties,  without  express  legislative  author- 
ity. Many  authorities  go  to  the  extent  of  holding  that  this  rule 
applies  to  all  corporations  devoted  to  the  discharge  of  public 
duties.  The  Tennessee  courts  do  not  go  so  far,  as  they  have 
held  that  a  gaslight  company  could  mortgage  its  property 
without  express  legislative  authority.  11  Pick.,  142. 

The  rule  is  held,  however,  to  apply  to  railways.  Thompson 
on  Corp.,  sec.  6137;  88  Tenn.,  138,  152;  40  Am.  &  Eng.  R. 
R.  Cases,  358;  101  U.  S.,  71;  34  Vt.,  484;  36  Vt.,  452;  10 
Allen  (Mass.),  448,  s.c.  --  Am.  Dec.,  672;  11  Allen  (Mass.), 
65;  87  Am.  Dec.,  700;  Jones  on  Corp.  Bonds  &  Mortgages, 
sec.  3;  65  N.  Y.,  43,  50;  32  N.  H.,  484;  15  Ohio  St.,  21; 
40  Mo.,  140;  27  Miss.,  517;  Elliott  on  Railroads,  sec.  488; 
118  Mass.,  543;  61  111.,  422;  152  U.  S.,  191.  See  also  6 
Heis.  (Tenn.),  421. 

It  has  been  held,  however,  that  this  rule  does  not  apply  to 
property  not  necessary  to  enable  the  corporation  to  perform  its 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.     RY. 

duties  to  the  public.  99  U.  S.,  48,  57;  22  Wall.,  527;  Elliott 
on  Kail  roads,  sec.  488. 

We  will  now  examine  the  charter,  amendments  thereto,  and 
the  general  law  of  Tennessee,  to  see  what  authority  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  has  to  mortgage  its 
property  in  Tennessee. 

What  power  exists  in  the  charter  of  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  tO  mortgage.— There  is  no  direct 
power  given  in  the  charter,  or  amendments  thereto,  authorizing 
the  execution  of  a  mortgage.  The  only  clause  that  could,  in 
any  way,  be  construed  into  such  authority  is  in  section  1  of  the 
charter,  which,  among  other  things,  provides:  "The  Nashville 
&  Chattanooga  Railroad  Company  shall  be  capable  in  law  to 
buy,  receive  by  gift,  hold,  sell,  and  convey  real  and  personal 
estate,"  etc. 

In  many  of  the  states  this  power  to  sell  and  convey  by  im- 
plication gives  the  power  to  mortgage.  Jones  on  Corp.,  Bonds 
and  Mortgages,  sec.  7,  119  U.  S.,  191.  But  this  has  been 
held  only  to  apply  to  the  property  as  distinguished  from  the 
franchises  of  the  company.  Id.  3  Woods,  481;  2  Kelly 
(Ga.),  383. 

The  word  "convey"  in  the  above  section  of  the  charter 
evidently  contemplates  a  different  disposition  from  the  word 
"sale,"  which,  by  inference,  might  mean  mortgage.  Thus, 
in  a  similar  case,  it  was  held  that,  where  the  charter  of  a  rail- 
way authorized  it  to  "  dispose  of"  its  lands,  etc.,  it  might 
mortgage  them.  (J9  U.  S.,  48. 

What  power  exists  under  the  general  law.— Whatever  may 

be  the  construction  placed  upon  the  charter  provision  above  re- 
ferred to,  when  tested,  there  can  be  no  doubt  but  that  under 
the  general  law  the  railway  now  has  the  right  to  mortgage  its 
property. 

The  following  acts  of  the  state  of  Tennessee  relating  to 
mortgages,  are  set  out  in  the  order  of  their  passage: 

1.  May  mortgage  their  property;  when;  not  to  interfere 

with  State's  Hen. — Any  railroad  company  in  this  state  may 
issue  bonds  in  such  amounts,  and  bearing  such  rate  of  interest, 


864  MORTGAGES. 

not  exceeding  the  legal  rate  of  interest  at  the  place  where  pay- 
able, as  may  be  determined  on  by  the  stockholders  represent- 
ing a  majority  of  all  the  stock  in  the  company,  and  may  secure 
the  payment  of  such  bonds  principal,  and  interest  by  mort- 
gage of  the  franchises,  roadbed,  superstructures,  equipments, 
and  property  of  every  description  of  such  railroad  company. 
The  mortgage  above  authorized  shall  not  interfere  with  prior 
liens,  especially  the  liens  of  the  state  in  the  existing  mortgages 
in  favor  of  the  state.  Acts  Ten n.,  1870-71,  ch.  116,  sec.  1; 
code  Tenn.  [Shannon's],  §  1541;  [M.  &  V.],  §  1276. 

2.  Further  on  the  Subject. — Every  railroad  corporation   in 
this  state,   whether  created  under  a   general  or   special    law, 
"shall  have  the  power  to  borrow  money  and  to  issue  its  bonds 
therefor,   or  for  any  other  indebtedness  or   liability  which  it 
may  incur  or  may  have  incurred,  in  the  exercise  of  its  lawful 
purposes,  and  to  secure  the  pa}rment  of  such  bonds,  with  the 
interest  thereon,  by  a  mortgage  of  the  whole  or  any  part  of 
its  railroad  and  equipments  and  other  property  and  franchises, 
containing  such  provisions  as  its  directors  shall  approve.     Acts 
Tenn.    1871,  ch.  69;  code  Tenn.    [Shannon's],    §1510;   (M.   & 
V.),  §1251. 

3.  Further    on    the    Same    Subject.— Railroad    companies 
existing  under  the  laws  of  this  state,  or  of  this  state  and  any 
other  state  or  states,  whose  original  charter  of  incorporation 
was  granted  by  this  state,  are  empowered  to  issue  bonds,  and 
secure  the  payment  thereof  by  mortgage  upon  their  franchises 
and  property  in  any  state  or  states,  or  upon  any  part  of  such 
franchises  and  property,  or  to  issue  income  or  debenture  bonds, 
and  such  guaranteed,  preferred,  and  common  stock  as  may  be 
determined  upon  by  the  stockholders;  Provided,  The  same  be 
approved    by  the    votes   of    the    holders   of   three-fourths    in 
amount  of  the  entire  stock  of  said  company,  at  a  regular  or 
called  meeting  of  the  stockholders  of  said  company,  and  that 
sixty  days'  notice  be  given  in  a  Memphis,  Knoxville,  and  Nash- 
ville daily  newspaper  of  the  time,  place,  and  purpose  of  the 
meeting.     Acts  Tenn.,  1881,  ch.  9,  sec.  1;  Code  Tenn.  [Shan- 
non], §  1542;  [M.  &  V.],  §  1277. 


GENERAL    POWERS   OF    THE    X.,    C.    4    ST.     L.     RV.  865 

The  supreme  court  of   Tennessee  has  decided  that  this  act  does  not 
.  1  the  special  limitations  imposed  by  the  Acts  of  Tenn..  1H77.  ch.  72, 
upon  tli.-  power  of  consolidated  railway  companies  to  make  mortgages 
Of  tlieir  pniperly.     4  Pick.  (Tenn.).  140. 

4.  The  next  act  relating  to  corporate  mortgages   was 

p:i— ed  by  the  legislature  of  18*.">,  p.  103,  but  the  act  itself 
specifically  provided  that  it  should  not  apply  to  railroads,  and 
hence  it  is  omitted  here. 

Mortgage  not  to  affect  certain  judgments,  etc.,  when.— 

No  railroad  company  shall  have  power  to  give  or  create  any 
mortgage  or  other  kind  of  lien  on  its  railway  projMjrty  in  this 
state,  which  shall  be  valid  and  binding  against  judgments  and 
decrees,  and  executions  therefrom  for  timbers  furnished  and 
work  and  labor  done  on,  or  for  damages  done  to  |x»rsons  and 
property  in  the  operation  of  its  railroad  in  this  state.  Acts 
Tenn.,  ls77,  ch.  72,  sec.  3:  ch.  12,  sec.  3;  code  Tenn.  ^Shan- 
non's), £  1530;  (M.  &  V.),  £  1271. 

This  section  is  constitutional,  and  is  not  repealed  by  acts  Tenn.,  1881, 
ch.  9.  sec.  1,  as  codified  in  the  code  (Shannon's)  as  ?  1542.  and  which  sec- 
tion has  heretofore  been  set  out.  4  Pick..  150-163,  107. 

This  lien  continues  after  damage  to  person  agreed  upon.  4  Pick. 
(Tenn.),  146-14'.». 

It  protects  creditors  for  personal  injuries  without  judgment  when. 
4  Pick.  (Tenn.),  144,  145. 

Who  to  authorize,  directors  or  stockholders,  in  Tennessee, 

and  VOte  necessary.— It  is  a  general  principle  of  law  that 
the  directors  of  a  corporation,  in  the  absence  of  any  legislative 
restriction,  are  the  ones  to  authorize  a  mortgage,  and  not  the 
stockholders.  93  111.,  153;  30  Vt.,  149:  14  Allen,  381;  13 
Pick.,  21)1;  7  Fed.  Rep.,  793;  68  Ala.,  229;  65  Pa.  St.,  290; 
35  Mo.,  13;  68  Miss.,  423;  Elliott  on  Railroads,  sec.  491. 

In  Tennessee,  under  the  acts  of  1870-71,  ch.  116,  hereto- 
fore set  out,  it  was  provided  that  the  mortgage  should  be  ap- 
proved by  a  majority  of  all  the  stockholders  in  the  company. 

The  acts  of  Tenn.,  1871,  ch.  69,  does  not  refer  to  stockhold- 
ers, but  leaves  the  matter  to  the  directors. 

The  acts  of  Tenn.,  1881,  ch.  9,  require  that  the  same  be 
approved  by  the  votes  of  the  holders  of  three-fourths  in  amount 

55 


866  MORTGAGES. 

of  the  entire  stock  of  said  company,  at  a  regular  or  called 
meeting  of  stockholders,  and  that  sixty  days'  notice  be  given 
in  a  Memphis,  Knoxville,  and  Nashville  daily  newspaper,  of 
the  time,  place,  and  purpose  of  the  meeting. 

This  latter  act  should  be  followed,  though  it  is  open  to  many 
objections  from  a  constitutional  standpoint  on  account  of  its 
caption.  This  is  advised,  as,  by  so  doing,  the  other  acts  will 
also  be  complied  with.  The  acts  of  1881,  ch.  9,  however, 
were  incidentally  passed  upon  in  4  Pick.  (Tenn.),  140,  and  no 
notice  taken  of  irregularities  in  caption. 

After  acquired  property  may  be  mortgaged.— Though  no 

statute  law  authorizes  the  mortgage  of  after  acquired  prop- 
erty in  Tennessee,  yet  it  is  well  recognized  that  a  power  to 
mortgage  property  generally,  in  the  absence  of  restraining 
statutes,  of  itself  confers  the  power  upon  a  railway  company  to 
mortgage  property  to  be  by  it  thereafter  acquired,  and  such  a 
mortgage  will  cover  property  of  which  the  company  acquires 
either  the  legal  or  equitable  title.  138  U.  S.,  414;  Thompson 
on  Corp.,  sec.  6141;  1  Wall.  (U.  S.),  254;  58  Ala.,  489;  72 
Me.,  83;  46  Conn.,  156;  146  U.  S.,  536;  15  Ohio  St.,  523; 
Elliott  on  Railroads,  sec.  497;  104  U.  S.,  25;  64  Ala.,  122, 
603;  Shannon's  Tenn.  Cases,  p.  774;  94  Ga.,  306;  Cook  on 
Corp.  (4th  ed.),  sec.  857;  132  U.  S.,  68;  164  U.  S.,  1,  15; 
95  U.  S.,  11;  94  N.  Y.,  160;  64  Pa.  St.,  366;  36  Fed.  Rep., 
288;  147  U.  S.,  431;  138  U.  S.,  414;  65  N.  Y.,  43,  51. 

In  Tennessee  it  has  been  held  that  such  a  mortgage  was 
valid,  and  that  the  trustee  would  in  equity  have  a  lien  upon 
the  after-acquired  property,  if  it  should  come  into  his  hands, 
subject  to  the  liens  that  may  have  fastened  upon  the  property 
before  it  came  into  his  possession — as,  for  instance,  where  the 
property  had  been  attached  before  it  reached  the  mortgagee  or 
trustee.  6  Heis.  (Tenn.),  421.  See,  also,  7  Bax.,  98;  23 
111.,  324. 

Future  earnings  may  be  mortgaged.— For  the  same  reason  a 

railway  having  the  general  power  to  mortgage  may  pledge  or 
mortgage  its  future  net  earnings,  to  raise  money  for  equipping 
or  constructing  its  road  or  other  property.  26  111.,  121;  123 


GENERAL    POWEK8    OF    THE    N.,    C.    A    ST.    L.    RY.  867 

U.  S.,  687;  11  Iowa,  572;  79  Am.  Dec.,  513;  Thompson  on 
Corp.,  sec.  6148;  91  U.  S.,  603;  81  111.,  534;  124  Mass.,  154; 
51  Me.,  341;  Elliott  on  Railroads,  sec.  495;  Shannon's  Tenn. 
Cases,  p.  774. 

By  acts  of  Tenn.  1881,  ch.  9,  sec.  1,  all  railway  companies 
existing  under  the  laws  of  this  state,  or  of  this  state  and  any 
other  state  or  states,  whose  original  charter  of  incorporation 
was  granted  by  this  state,  were  empowered  to  issue  income  or 
debenture  bonds. 

In  Tennessee  it  has  been  held  that,  where  the  net  earnings  of 
a  railroad  are  mortgaged,  the  lien  of  the  mortgage  does  not 
attach  until  the  net  earnings  are  ascertained  and  set  apart  to 
the  mortgagee,  and,  until  this  is  done,  the  gross  earnings  are 
liable  to  be  attached  by  the  creditors  of  the  railroad  company. 
6  Heis.  (Tenn.),  421. 

May  mortgage  leased  roads.— Where  the  power  to  mortgage 
exists  the  entire  leasehold  interest  in  any  road  may  be  mort- 
gaged. This  would  be  so  even  though  there  oe  a  clause  in 
the  lease  prohibiting  subleasing.  Such  a  clause  would  not 
prevent  a  mortgage  or  assignment  of  the  entire  leasehold  in- 
terest, as  it  has  uniformly  been  held  that  this  is  in  no  man- 
ner a  violation  of  a  covenant  not  to  sublet.  27  Barb.  (N. 
Y.).  415;  25  N.  J.  L.  (1  Dutch.),  291,  285;  33  N.  J.  L.  (4 
Vr.),  254;  47  Minn.,  189;  15  L.  R.  A.,  236;  16  Johns.,  159;  1 
Wood  on  Land,  and  Tenant,  sec.  258,  327;  Taylor  on  Land,  and 
Tenant,  sec.  16;  129  111.,  318;  14  Lea  (Tenn.),  92;  9  Lea 
(Tenn.),  1. 

May  mortgage  personal  property  and  rolling  stock.— Cook 

on  Corp.  (4  ed. ),  sees.  852,  854. 

May  mortgage  a  part  Of  its  road.— It  is  generally  conceded 
that  if  a  railroad  company  has  power  to  mortgage  its  road  it 
has  power  to  mortgage  a  part  of  it.  20  Fed.  Cas.,  32;  85  Pa. 
St.,  501.  In  the  latter  case  it  was  also  held  that  where  a  rail- 
road company  mortgages  such  part  of  its  road  as  is  completed, 
and  the  mortgage  is  foreclosed,  the  purchasers  arc  not  bound 
to  go  on  and  complete  the  road.  See  also  Cook  on  Corp. 
(4  ed.),  sec.  786;  Elliott  on  R.  R.,  sec.  489. 


868  MORTGAGES. 

ALABAMA  ACTS  AS  TO  MORTGAGING. 

[In  Alabama.]  Power  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  mortgage  its  road  in  Alabama.— in  discussing 

this  it  is  necessary  to  bear  in  mind  that  as  to  its  main  line  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  is  a  foreign  corpo- 
ration in  Alabama,  though  as  to  the  lines  of  those  Alabama  rail- 
roads it  has  purchased  it  is  a  domestic  corporation  there.  A 
corporation  is  not  incorporated  in  a  foreign  state  simply  by  the 
purchase  or  lease  of  a  domestic  railroad  of  that  state.  Elliott 
on  Railroads,  sec.  26;  1  Hilton  (N.  Y.),  62;  30  N.  J.  L.,  473; 
31  N.  J.  L.,  531;  32  Ohio  St.,  468;  50  Pa.  St.,  26.  See,  how- 
ever, 85  Tenn.,  189:  But  it  would  be  domesticated  as  to  the 
lines  of  roads  so  purchased,  and,  hence,  no  suit  growing  out  of 
the  operation  of  a  road  so  purchased  could  be  removed  to  the 
federal  court  on  the  ground  of  "nonresidents."  108  U.  S., 
436;  14  Minn.,  303:  43  Mich.,  354;  1  Wall.,  40;  12  Wall., 
65,  82.  See, 'also,  90  Ga.,  523;  76  Ga.,  99;  9  Am.  &  Eng. 
R.  R.  Cases,  201;  53  Ala.,  237;  21  Law  Rep.,  138;  3  Tenn. 
Ch.,  602;  59  Ga.,  263;  2  Woods,  409;  30  Fed.  Cases,  73. 

A  railroad  chartered  by  two  states  is  a  citizen  of  each.     118  U.  S.,  161; 

7(5  Ala  .  388. 

It  is  true  the  state  of  Alabama  authorized  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  to  build  its  main  line  in  that 
state,  and  conferred  upon  it  "all  the  rights,  privileges,  immuni- 
ties,'' etc.,  of  its  Tennessee  charter.  (See  p.  55,  et  seq,  herein.) 
But  this  did  not  domesticate  the  main  line  of  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  in  Alabama,  nor  did  its  sub- 
sequent purchase  of  the  Tennessee  &  Coosa  Railroad,  the  Mid- 
dle Tennessee  &  Alabama  Railroad,  or  the  Huntsville  &  Elora 
Railroad.  32  Fed.  Rep.,  849;  21  Fed.  Rep.,  817;  20  Am.  & 
Enr.  R-  R.  Cases,  597;  22  Fed.  Rep.,  353;  46  Mich.,  224;  76 
Ala.,  3*8;  13  Am.  &  Eng.  R.  R.  Cases,  296;  23  Am.  &  Eng. 
R.  R.  Cases,  487;  49  N.  J.  L.,  193;  129  Pa.  St.,  463;  18  Alt. 
Rep.,  412.  See,  also,  118  U.  S.,  290;  104  U.  S.,  5. 

Same.  Power  as  to  its  main  line  to  mortgage.— The  Nash- 
ville Chattanooga  &  St.  Louis  Railway  proper  being  a  foreign 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.     RY.  B68 

corporation  in  Alabama,  as  heretofore  explained,  reference 
iiui-4  be  had  to  the  law  of  its  organization,  as  well  as  to  the 
general  powers  conferred  uj)on  it  in  the  state  of  its  creation  in 
dotermining  its  power  to  lease  in  Alabama.  Corporations  go- 
ing beyond  the  jurisdiction  that  created  them  can  generally  do 
only  those  things  which  by  express  grant  or  necessary  implica- 
tion they  are  authorized  or  empowered  to  do  by  the  laws  of 
the  state  granting  their  charters.  30  Am.  <fe  Eng.  R.  II.  Cases, 
449;  74  Texas,  474;  8  S.  W.  Rep.,  533;  35  Kan.,  236;  10 
Pac.  Rep.,  596;  24  Am.  &  Eng.  R.  R.  Cases,  34;  3  Head 
(Tenn.),  337;  72  111.,  50;  22  Am.  Rep.,  133;  29  Barb.  (N.  Y.), 
650;  Thomp.  on  Corp.,  sec.  7920;  1  R.  (Ky.),  8. 

1.  Some  of  the  states   hold,    however,    that  a   foreign   corporation 
authorized  by  an  act  of  the  assembly  of  the  state  it  desires  to  enter  to 
construct  a  portion  of  its  road  through  the  state,  is  entitled  to  the  same 
rights  and  privileges  as  domestic  corporations.     6  Watts  &  S.  (Pa. ),  101; 
33  Pa.  St.,  175;  14  Pa.  St.,  65;  6  Whart.  (Pa.),  45;  14  How.  (U.  S.),  80. 

2.  But   a   foreign    corporation   cannot   by    comity  exercise    powers 
within  a  state  which  a  domestic  corporation  would  be  prevented  from 
exercising  under  the  constitvition  of  the  state.     52  Am.  «fe  Eng.   R.  R. 
Cases,  115;  50  Fed.  Rep.,  338. 

3.  It  may  be  done,  however,  by  express  legal  permit  from  the  legis- 
lature. 

As  it  has  been  shown  in  the  tirst  part  of  this  chapter  that  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  possessed  the 
power  to  mortgage  in  Tennessee,  it  would  possess  that  power 
in  Alabama,  in  the  absence  of  any  legislation  to  the  contrary. 

Same.  Alabama  decisions  on  subject.— The  courts  of  Ala- 
bama have  gone  farther  in  conceding  implied  powers  to  railroad 
companies  to  mortgage  their  property  than  most  states.  Thus 
it  has  been  held  that,  in  the  absence  of  statutory  limitation,  a 
railroad  company  has  implied  power  to  borrow  money  for  the 
purpose  of  properly  conducting  its  business,  and  to  mortgage 
its  property  to  secure  the  payment  of  the  loan.  117  Ala., 
680;  62  Ala.,  55.5;  15  Ala.,  472;  11  Ala.,  437;  5s  Ala.,  4S9. 

There  art-  no  statutes  on  the  subject  in  Alabama. 

Power  to  mortgage  purchased  roads  of  Alabama.— Where 

roads  are  purchased  in  Alabama,  together  with  all  their  rights, 
powers,  privileges,  and  franchises,  regard  must  also  be  had  to 


870  MORTGAGES. 

their  organic  law,  as  well  as  the  laws  of  Alabama  affecting 
them,  in  ascertaining  the  power  to  mortgage  them.  In  other 
words,  as  to  the  line  of  such  roads,  the  Nashville,  Chattanooga 
&  St.  Louis  Railway  would  be  vested  with  all  the  powers  and 
privileges,  and  subject  to  all  the  duties  and  liabilities,  of  said 
original  companies.  If  they  had  power  to  mortgage,  then  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  would  also  possess 
it,  as  to  those  particular  lines,  in  as  full  and  complete  a  manner 
as  the  original  companies  had.  Rogers  v.  JV.,  C.  cfe  St.  L. 
Ry.  et  als.,  decided  November  9,  1898,  by  the  United  States 
circuit  court  of  appeals,  sitting  at  Cincinnati,  but  which  case 
has  not  as  yet  been  reported.  See  also  15  Lea  (Tenn.),  37; 
112  IT.  S.,  610. 

1.  Power  to  mortgage  leased  roads. — The  same  rule  would  apply  to 
leased  roads,  even  in  the  face  of  a  clause  in  the  lea^e  prohibiting1  sub- 
leasing-, as  the  mortgage  or  assignment  of  the  entire  leasehold  interest 
is  in  no  manner  a  violation  of  a  covenant  not  to  sublet.     27  Barb.  (N. 
Y.),  415;  25  N.  J.  L.  (1  Dutch),  291,  285;  33  N.  J.  L.  (4  Vr.),  254;  47  Minn., 
189;   15  L.  R.  A.,  236;    16  Johns,  159;    1  Wood  on  Land  &  Tenant,  sees. 
258,  327;  Taylor  on  Land  &  Tenant,  sec.  16;  129  111,,  318;  14  Lea  (Tenn.), 
92;  9  Lea  (Tenn.),  1. 

2.  Rolling  stock. — Is  a  chattel  personal,  and  is  not  converted  into 
realty  by  being-  put  upon  the  railroad.     53  Ala.,  237.     It  may  be  mort- 
gaged, however. 

GEORGIA  ACTS  AS  TO  MORTGAGING. 

[In  Georgia.]  Power  of  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  mortgage  its  road  in  Georgia.— In  the  dis- 
cussion of  this  subject  it  is  necessary  to  bear  in  mind  that  as 
to  its  main  line  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way is  a  foreign  corporation  in  Georgia,  though  as  to  the  lines 
of  those  Georgia  railroads  it  has  purchased  or  leased  it  is  a 
domestic  corporation  there.  A  corporation  is  not  incorporated 
in  a  foreign  state  simply  by  the  purchase  or  lease  of  a  domes- 
tic railroad  of  that  state.  Elliott  on  Railroads,  sec.  26;  1  Hil- 
ton (N.  Y.),  62;  30  N.  J.  L.,  473;  31  N.  J.  L.,  531;  32  Ohio 
St.,  468;  58  Pa.  St.  26.  See,  however,  85  Tenn.,  189;  but  it 
would  be  domesticate  as  to  the  line  of  the  road  so  purchased 
or  leased,  and  hence  no  suit  growing  out  of  the  operation  of 


GENERAL    POWERS    OF    THE    N.,    C.    A    8T.    L.    RV.  871 

the  line  so  purchased  could  be  removed  to  the  federal  court 
upon  the  ground  of  *  *  nonresidence. "  108  U.  S.  R.,  436;  14 
Minn.,  309;  43  Mich.,  354;  1  Wall.,  40.;  12  Wall.,  65,  82; 
see  also  90  Ga.,  523;  76  Ga.,  99;  9  Am.  &  Eng.  R.  R.  Cases, 
201;  53  Ala.,  237;  21  Law* Rep.,  138;  3  Tenn.  Chy.,  602;  59 
Ga.,  263,  and  74  Ga. ,  634,  which  latter  case  was  reversed  by 
federal  court;  2  Woods,  409;  30  Fed.  Cases,  73. 

A  railroad  chartered  by  two  states  is  a  citizen  of  each.     118  U.  S.,  101. 

It  is  true,  the  state  of  Georgia  authorized  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  to  build  its  main  line  in  that 
state,  and  conferred  upon  it  "all  the  rights,  privileges,  and 
immunities,"  etc.,  of  its  Tennessee  charter  (see  p.  55,  et  8eq., 
herein),  but  this  did  not  domesticate  the  main  line  of  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  in  Georgia,  nor  did  its 
subsequent  purchase  of  the  Rome  Railroad.  32  Fed.  Rep., 
849;  21  Fed.  Rep.,  817;  20  Am.  &  Eng.  R.  R.  Cases,  597;  22 
Fed  Rep.,  353;  46  Mich.,  224;  76  Ala.,  388;  13  Am.  &  Eng. 
R.  R.  Cases,  296;  23  Am.  &  Eng.  R.  R,  Cases,  487;  49  N.  J. 
L.,  193;  129  Pa.  St.,  463;  18  Atl.  Rep.,  412;  see  also  118  U. 
S.,  290;  104  U.  S.,  5. 

Same.    Power  to  mortgage  its  main  line  in  Georgia.— The 

Nashville,  Chattanooga  &  St.  Louis  Railway  proper  being  a 
foreign  corporation  in  Georgia,  as  heretofore  explained,  refer- 
ence must  be  had  to  the  law  of  its  organization,  as  well  as  to 
the  general  powers  conferred  upon  it  in  the  state  of  its  creation 
in  determining  its  power  to  mortgage  in  Georgia.  Corpora- 
tions acting  beyond  the  jurisdiction  that  created  them  can  ordi- 
narily do  only  those  things  which,  by  express  grant  or  necessary 
implication,  they  are  authorized  or  empowered  to  do  by  the 
laws  of  the  state  granting  their  charters.  36  Am.  &  Eng.  R. 
R.  C.,  449;  74  Texas,  474;  8  S.  W.  Rep.,  533;  35  Kan., 
236;  10  Pac.  Rep.,  596;  24  Am.  &  Eng.  R.  R.  C.,  34;  3 
Head  (Tenn.),  337;  72  111.,  50;  22  Am.  Rep.,  133;  29  Barb. 
(N.  Y.),  650;  Thompson  on  Corp.,  §  7920;  1  R.  (Ky.),  8. 

It  has  been  held,  however,  that  a  foreign  corporation  authorized  by  an 
act  of  the  assembly  of  the  state  it  desires  to  enter,  to  construct  a  portion 
of  its  road  through  the  state,  is  entitled  to  the  same  rights  and  privileges 


872  MORTGAGES. 

as  domestic  corporations.     33  Pa.  St.,  175;  6  Watts  &.  S.  (Pa.),  101;  14  Pa. 
St.,  65;  6  Whart.  (Pa.),  45;  14  How.  (U.  S.).  80. 

But  a  foreign  corporation  cannot,  by  comity,  exercise  pow- 
ers within  the  state  which  a  domestic  corporation  would  be  pre- 
vented from  exercising  under  the  constitution  of  the  state.  52 
Am.  &  Eng.  R.  R.  Gas.,  115;  50  Fed.  Rep.,  338. 

See  \\  1847-50  of  Code  Ga.,  1895,  on  this  l.ne,  farther  on  in  this  chap- 
ter. It  may  be  done,  however,  by  express  leyal  permit  from  the  legisla- 
ture. 

From  the  foregoing  it  will  clearly  appear  that  the  power  of 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  proper  to  mort- 
gage its  road,  or  to  mortgage  purchased  roads  in  Georgia, 
must  largely  depend  on  the  powers  it  possesses  in  Tennessee. 
As  it  has  heretofore  been  shown  that  it  possesses  those  powers 
in  Tennessee,  it  would  follow  that  it  possesses  them  there  in 
the  absence  of  any  legal  legislation  to  the  contrary,  which  does 
not  now  exist. 

1.  After  acquired  property  may  be  mortgaged  in  Georgia.     42  Ga.. 
133;  96  Ga.,  580. 

2.  Power  to  mortgage  gives  power  to  mortgage  part  of  road  instead 
of  whole.     85  Pa.  St.,  501-6;  10  Allen  (Mass.),  459;  Elliott  on  Railroads, 
sec.  489. 

Same.    Power  to  mortgage  its  purchased  or  leased  roads. 

—The  Nashville,  Chattanooga  &  St.  Louis  Railway  has  pur- 
chased the  Rome  Railroad  (see  p.  379,  herein),  a  corporation 
of  Georgia,  together  with  all  its  rights,  privileges,  and  fran- 
chises. In  ascertaining  the  power  of  the  said  Nashville,  Chat- 
tanooga &  St.  Louis  Railway  to  mortgage  that  road  to  another 
company,  regard  must  also  be  had  to  the  law  of  the  organization  of 
the  Rome  Railroad  Company  as  well  as  the  laws  of  Georgia  affect- 
ing it.  In  other  words,  as  to  the  line  of  that  road,  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  would  be  vested  with 
all  the  powers  and  privileges,  and  subject  to  all  the  duties  and 
liabilities,  of  the  original  company.  If  the  Rome  Railroad 
Company  originally  had  the  power  to  mortgage  or  sell,  then 
the  Nashville,  Chattanooga  &  St.  Louis  Railway  would  have 
that  power  as  to  that  particular  line  as  fully  as  the  original 
company  had.  Rogers  v.  N.,  C.  c£  St.  L.  By. ,  decided  No- 


l.NEKAL    POWERS   OF   THE    X.,    C.    .v    ST.    L.     RV.  873 

vein  her  9,  1898,  by  the  United  States  circuit  court  of  appeals, 
sitting  at  Cincinnati,  but  which  opinion  has  not  yet  been  re- 
ported. See,  also,  15  Lea  (Tenn.  \  37;  112  U.  S.,  610- 

The  same  would  be  true  of  any  other  railroad  it  may  purchase  in 
Georgia. 

The  same  would  be  true  as  to  the  lines  of  any  roads  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  might  lease  in 
Georgia  if  all  their  rights,  powers,  privileges,  and  franchises 
]>;i-M'd.  Kven  where  there  is  a  clause  prohibiting  subleasing 
(as  was  done  in  the  lease  to  the  Western  &  Atlantic  Railroad), 
a  mortgage  or  assignment  of  the  entire  leasehold  interest  is  in 
no  manner  a  violation  of  a  covenant  not  to  sublet.  27  Barb. 
(N.  Y.),  415;  25  X.  J.  L.  (1  Dutch),  291,  285;  33  N.  J.  D. 
(4  Vr.),  254;  47  Minn.,  189;  15  L.  R.  A.,  236;  W  Johns, 
159;  1  Wood  on  Landlord  &  Tenant,  sees.  258,  327;  Taylor 
on  Landlord  &  Tenant,  sec.  16;  129  111.,  318;  U.Lea  (Tenn.), 
92;  9  Lea  (Tenn.),  1. 

Railroads  chartered  under  general  laws  of  Georgia  ;  may 

mortgage;  hOW. — Said  railroad  companies  shall  be  empowered 
"  to  lx)rrow  such  sum  or  sums  of  money,  at  such  rates  of  in- 
terest and  upon  such  terms  as  such  company,  or  its  board  of 
directors,  shall  deem  necessary  or  expedient,  and  may  execute 
one  or  more  trust  deeds  or  mortgages,  or  both,  if  the  occasion 
may  require,  on  said  railroad  in  progress  of  construction,  or 
after  the  same  has  been  constructed,  for  the  amounts  l>orrowed, 
or  owing  by  such  company.  Said  company  may  make  such 
provisions  in  such  trust  deed  or  mortgage  for  transferring  said 
railroad  track,  depots,  grounds,  rights,  privileges,  franchises, 
immunities,  machine-houses,  rolling-stock,  furniture,  tools, 
implements,  appendages  and  appurtenances  used  in  connection 
with  said  railroad,  in  anv  manner  then  belonging  to  said  com- 

V 

pany,  or  which  shall  thereafter  belong  to  it,  as  security  for  any 
bonds,  debts  or  sums  of  money  secured  by  such  trust,  deeds  or 
mortgages,  as  they  shall  think  proper;  and  all  such  deeds  of 
trust  and  mortgages  shall  l>e  recorded,  as  is  provided  by  law 
for  the  record  of  mortgages  in  this  state,  in  each  county 
through  which  said  road  runs,  but  all  rights  to  liorrow  money, 


874  MORTGAGES. 

issue  bonds,  or  other  evidences  of  debt,  and  to  execute  trust, 
deeds  or  mortgages  to  secure  the  same,  shall  be  exercised 
within  the  limitations  and  in  the  manner  which  shall  be  pre- 
scribed by  the  law  of  this  state.  Code  Ga.,  1895;  §  2167  (10). 

1.  See  discussion  of  subject  generally  under  Tennessee  law  in  first 
part  of  this  chapter. 

2.  After  acquired  property  may  be  mortgaged. — 94  Ga.,  306;  96  Ga., 
580;  42  Ga.,  133. 

3.  Authority  to  execute  mortgage. — Must  be  conferred  by  act  of  di- 
rectors where  organic  statute  requires  it.     91  Ga.,  624. 

4.  Foreign  mortgage. — On  lands  in  Georgia  is  security  only.     36  Ga., 
138. 

5.  If  valid  where  executed,  valid  everywhere.     76  Ga.,  178. 

6.  Future  acquired  property. — May  be  mortgaged  by  railroads.     94 
Ga.,  319. 

KENTUCKY  ACTS  AS  TO  MORTGAGING. 

[In  Kentucky].  Power  of  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  mortgage  its  purchased  and  leased  roads  in 

Kentucky. — The  power  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  mortgage  its  purchased  and  leased  roads  in 
Kentucky  depends  upon  substantially  the  same  principles  as  its 
power  to  lease  them.  As  this  latter  subject  has  been  gone  into 
fully  in  the  preceding  chapter  on  leases,  p.  856,  herein,  it  will 
not  again  be  discussed,  but  reference  is  made  thereto. 

As  the  Nashville,  Chattanooga  &  St.  Louis  Railway  possesses  the 
power  to  mortgage  in  Tennessee,  it  would  possess  it  in  Kentucky,  in 
the  absence  of  any  legislation  to  the  contrary,  which  does  not  now  exist. 

Thompson,  in  his  work  on  corporations,  in  speaking  of  the 
power  of  foreign  corporations  to  mortgage  their  roads,  says: 
"The  jus  disponendi  being  a  universal  incident  of  the  beneficial 
ownership  of  property,  whenever  the  power  of  a  foreign  cor- 
poration to  acquire  land  is  conceded,  the  power  to  dispose  of  it 
must  also  follow,  and  that  foreign  corporations  have  the  same 
power  to  mortgage,  or  otherwise  incumber  their  property  that 
domestic  corporations  or  natural  persons  would  have,  101  111., 
206;  though  the  legislature  of  the  state  in  which  the  lands  are 
situated  may,  and  sometimes  does,  restrain  the  exercise  of  the 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RV.  875 

power,  whenever  to  follow  its  exercise  will  prejudice  the  rights 
of  its  own  citizens  as  creditors  of  the  corporation.  But  in  re- 
spect of  the  mode  in  which  the  conveyance  is  made,  the  local 
law  governs;  though  the  question  whether  the  directors  have 
received  power  from  the  stockholders  to  authorize  the  mortgage 
must  be  determined  by  reference  to  the  charter,  governing  stat- 
ute, or  by-laws  of  the  corporation.  For  instance,  it  has  l»een 
held  in  Massachusetts  that  a  statute  of  that  state,  providing  that 
a  corporation  shall  not  convey  or  mortgage  its  real  estate,  or 
give  a  lease  therefor  for  more  than  a  year,  unless  authorized  by 
a  vote  of  the  stockholders  at  a  meeting  called  for  the  purj)ose, 
does  not  apply  to  foreign  corporations,  nor  invalidate  a  mort- 
gage made  by  a  New  Hampshire  corporation  of  its  lands  situated 
in  Massachusetts,  where  there  has  been  no  such  vote  of  the 
stockholders."  147  Mass.,  224;  17  N.  E.  Rep.,  316;  Thomp- 
son on  Corp.,  §  7923. 

Mortgages  in  Kentucky  not  opposed  to  public  policy.— A 

mortgage  by  a  railroad  company  to  secure  money  borrowed  for 
the  construction  of  its  road  is  not  opposed  to  the  public  policy 
of  the  state.  This  is  indicated  by  the  general  course  of  legis- 
lation upon  the  subject.  4  Mete.  (Ky.),  199;  see  also  95  Ky., 
289;  15  R.  (Ky.),  785. 

Power  to  mortgage  gives  power  to  mortgage  a  part  instead  of  the 
whole  of  a  railroad.  85  Pa.  St.,  501-6;  10  Allen  (Mass.),  459;  Elliott  on 
R.  R.,  $  489. 

Railroads  chartered  under  general  acts  of  Kentucky  may 

mortgage  their  roads ;  hOW.— Corporations  organized  under 
this  law  sha'.l  have  power  to  borrow  such  sums  of  money  as 
may  be  necessary  for  funding  their  floating  debt  or  for  com- 
pleting, equipping,  or  operating  their  road,  or  any  part  thereof, 
or  for  paying  any  debts  incurred  for  such  purposes,  and  to 
issue  and  dispose  of  their  bonds  or  obligations  for  any  amounts 
necessarily  borrowed  for  such  purpose,  and  to  mortgage  their 
corporate  property  and  franchises,  or  any  part  thereof,  to 
secure  the  payment  of  any  debt  contracted,  or  to  defray  any 
expenditure  for  the  purposes  aforesaid,  and  may  confer  on  any 
holder  of  such  bonds  or  obligations  the  right  to  convert  the 


876  PKESIDENT,    HOW    CHOSEN,    ETC. 

same  into  the  stock  of  such  company;  and  may,  in  the  manner 
provided  in  article  I.  of  this  chapter,  increase  or  decrease  its 
capital  stock,  and  the  increased  stock  may  be  "common"  or 
"  preferred,"  as  shall  be  designated  in  the  call  for  the  meeting 
of  the  stockholders.  If  preferred  stock  be  issued,  the  company 
may  guarantee  to  tae  holders  thereof  semi-annual  or  quarterly 
dividends  to  an  i  no  ant  not  exceeding  six  per  cent,  per  annum, 
payable  at  its  office  or  at  such  other  places  as  the  directors  may 
designate.  The  stock  may  be  sold  at  such  time  and  place, 
either  within  or  without  the  state,  as  may  be  deemed  advisable, 
and  the  proceeds  thereof  applied  for  the  purposes  for  which  it 
was  issued.  Tiie  un preferred  stock  of  the  company  shall  be 
entitled  to  dividends  only  out  of  the  surplus  of  the  profits, 
after  setting  apart  a  sum  sufficient  to  pay  the  dividends  upon 
the  preferred  stock;  and  the  company  which  issues  such  pre- 
ferred stock  shall  reserve  the  privilege  of  redeeming  and  can- 
celing the  same  at  par  at  any  time  after  three  years  from  the 
date  of  its  issue,  and  the  preferred  stock  herein  provided  for 
may  be  convertible  into  bonds  of  the  company  at  the  option 
of  the  parties.  Code  Ky.  1894,  §  771. 


CHAPTER  LXXII. 

PRESIDENT— HOW  CHOSEN,  QUALIFICATIONS,  POWERS,  ETC. 

HOW  president  ChOSen.— The  president  of  this  company  shall 
be  elected  by  the  directors  from  among  their  own  members  in 
such  manner  as  the  regulations  of  the  corporation  shall  pre- 
scribe. Charter,  sec.  8,  p.  6  herein. 

The  by-laws  pr  vi  le  that  the  board  of  directors  shall  elect  a  president 
from  firir  Uoar.1  I  •  '.•-  p.  646  herein),  the  election  to  be  by  ballot  unles  by 
UTiiiiiimoii.s  <•  «M  <-.,  (see  p.  647  herein). 

Qualifications.— No  person  but  a  citizen  of  the  United 
States,  and  being  a  bonafide  stockholder  in  his  own  right  of  at 
least  forty  shares,  which  he  shall  have  held  at  least  three 
months  previous  to  his  election  (except  at  the  first  election), 


(.KNKKAI.    POWERS    OF    THE    N.,    C.    A    ST.     L.     RV.  877 

shall  be  president  or  a  director  of  the  company;  nor  shall  anv 
stockholder  vote  in  person  or  l>y  proxy  at  any  general  or 
other  election  (except  the  first)  who  shall  not  have  held  in 
his  own  right  the  shares  on  which  he  offers  to  vote  at  least 
three  months  previous  to  such  election.  Charter,  sec.  I4.',  p. 
I '2  herein. 

Pro  tempore  president.  -The  Ixmrd  of  directors  may  fill  up 
all  v  icancies  which  may  occur  in  it  during  the  period  for  which 
their  board  shall  have  been  elected,  and,  in  the  absence  of  the 
prc-ident,  may  fill  his  place  by  electing  a  president  pro  //-/«/*//r. 
Charter,  sec.  10,  p.  S  herein. 

The  by-laws  of  the  company  provide  likewise.     See  pp.  rtlO.  017  herein. 

Powers  Of  president. — Generally  speaking  it  is  impossible  to 
formulate  any  definite  legal  rules  within  which  to  prescriln?  the 
powers  of  a  railway  president.  From  the  nature  of  the  busi- 
ness to  be  transacted,  requiring  as  it  does  constant  attention, 
and  which  of  necessity  must  be  done  promptly  and  effectively 
without  calling  together  the  board  of  directors,  a  liency  is 
manifested  by  the  courts  to  recogni/e  implied  powers,  which 
do  not  exist  in  presidents  of  other  corporations,  such  as  manu- 
facturing, mining,  educational,  etc. 

General!}'  speaking,  it  may  be  said  that  a  railway  president 
may  act  for  the  company  in  all  ordinary  routine  business, 
unless  his  powers  are  circumscribed  and  limited  by  the  act  of 
incorporation  or  the  corporate  by-laws.  Klliott  on  Railroads, 
sec.  283. 

The  by-laws  provide  that  he  shall  have  general  supervision  and 
direction  of  all  departments  of  the  company 's  service.  See  p.  64'J  herein. 

Of  course  the  board  of  directors  may  materially  extend  the 
general  powers  of  the  president  and  invest  him  with  authority 
much  beyond  that  inherent  in  his  office;  and,  again,  his  |K>wers 
may  l>e  extended  by  corporate  usage  or  custom,  the  discussion 
of  which  would  require  too  much  time  for  the  space  here 
allotted.  The  by-laws  set  out  certain  jxwers  of  the  president, 
general  manager,  etc.,  but  by  usage  and  custom  these 
may  be  materially  enlarged. 


878  PURCHASE,    ETC. 

Same.    May  call  meeting  of  directors,  when.— Under  the 

by-laws  of  the  company  the  president  may  call  special  meetings 
of  the  directors  and  committees  at  such  times  as  he  may  deem 
proper.  See  p.  649  herein. 


CHAPTER  LXXIII. 

PURCHASE— POWER  TO  PURCHASE  OTHER  ROADS,  REAL 
ESTATE,  ROLLING  STOCK,  BRIDGES,  ETC. 

[in  Tennessee.]  Right  to  purchase  real  and  personal  estate. 

— Under  its  charter  of  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  the  company  has  the  right  to  buy,  receive  by  gift, 
hold,  sell,  and  convey  real  and  personal  estate  as  thereinafter 
provided.  Charter,  sec.  1,  p.  1  herein. 

Right  to  purchase  lands,  etc.,  for  depositories,  storehouses, 

Workshops,  materials,  etC. — Under  its  charter  the  company 
may  purchase,  have  and  hold  in  fee,  or  for  a  term  of  years, 
any  lands,  tenements,  hereditaments  which  may  be  necessary 
for  said  road,  or  appurtenances  thereof,  or  for  the  erection  of 
depositories,  storehouses,  houses  for  the  officers,  servants,  or 
agents  for  the  company,  or  for  workshops  or  foundries  to  be 
used  for  said  company,  or  for  procuring  timber,  stones,  or 
other  materials  necessary  for  the  construction  of  the  road  or  its 
appurtenances,  or  for  effecting  transportation  thereon.  Char- 
ter, sec.  21,  p.  13,  herein. 

The  supreme  court  has  held,  in  construing1  this  section  of  the  charter, 
in  conjunction  with  the  sections  on  eminent  domain,  that  for  the  pur- 
poses enumerated  in  the  above  section  the  railway  company  could  not 
condemn  the  land  necessary,  but  must  rely  on  negotiation  with  the 
owners  thereof,  as  allowed  in  said  section.  11  Hum.  (Tenn.),  348. 

Right  to  purchase  bridges  and  turnpikes.— Under  its  char- 
ter the  company  may  also  purchase,  have  and  hold  any  bridge 
or  turnpike  road  over  which  it  may  be  necessary  to  carry  the 
said  railroad;  and  when  such  purchase  is  made,  to  hold  the 
said  bridge  or  turnpike  road  on  the  same  terms  and  with  all 


GENERAL    POWERS   OF   THE    N.,    C.    A   ST.    L.    RY. 

the  rights  which  belong  to  the  individual,  individuals,  or  cor- 
poration from  which  such  purchase  may  be  made;  Provided, 
That  the  said  company  shall  not  obstruct  any  public  road  with- 
out constructing  another  as  convenient  as  may  be.  Charter, 

w 

sec.  23,  p.  14,  herein. 

See  notes  under  sec.  33  of  the  charter. 

Right  to  purchase  other  railways.— it  is  a  well  established 

principle  of  law  that,  in  order  to  render  the  sale  of  a  railway 
to  another  valid,  the  purchasing  road  must  have  the  power  to 
buy  conferred  either  in  its  charter,  amendments  thereto,  or  by 
the  general  law,  and  the  vendor  road  must  have  equal  author- 
ity to  sell.  161  U.  S.,  677-691;  145  U.  S.,  393-404;  101 
U.  S.,  71;  130  U.  S.,  1;  139  U.  S.,  24;  160  U.  S.,  514;  163 
U.  S.,  564. 

Whether  the  sections  of  the  charter  of  the  Nashville,  Chat- 
tanooga &  St.  Louis  Railway,  above  set  out,-  confers  upon  it 
the  power  to  purchase  other  roads  is  very  questionable,  yet,  as 
a  practical  question,  it  is  of  little  moment,  as  the  general  law 
supplies  all  deficiencies  in  this  regard.  Under  it  full  power  is 
conferred,  as  below  set  out. 

1.  May  purchase,  by  statute,  railroads,  franchises,  etc.— 

Every  railroad  corporation  in  this  state,  whether  created  under 
a  general  or  special  law,  shall  have  the  power  to  acquire,  by 
purchase  or  other  lawful  contract,  and  have,  hold,  use,  and  op- 
erate any  railroad,  with  its  franchises,  belonging  to  any  other 
railroad  corporation;  and  likewise  to  have,  hold,  use,  and  op- 
erate any  such  railroad,  with  its  franchises,  which  it  may  have 
heretofore  purchased  or  acquired.  Acts  Tenn.,  1871,  ch.  69, 
sec.  1;  code  Tenn.  (Shannon's),  £  1509;  (M.  &  V.),  §  1250. 

This  supersedes  the  act  of  Tenn.,  1871,  ch.  22,  which  act,  however, 
should  be  examined,  as  a  part  of  it  may  still  be  in  force. 

2.  May  purchase  privately  or  under  judicial  proceedings.— 

Any  railroad  corporation  which  has  l>een  created,  or  whose 
corporate  existence  has  Iwen  recognized  by  any  act  of  the  legis- 
lature of  this  state,  is  hereby  authorized  and  empowered  to 
become  purchaser  of  any  railroad  sold  in  this  or  any  adjoining 


880  PURCHASE,     ETC. 

state  under  any  judicial  proceeding  in  such  state,  or  sold  by 
any  person  or  persons,  natuval  or  corporate,  who  may  have 
purchased  or  derived  title  under  or  from  any  such  judicial  sale. 
Acts  Tenn.  1877,  ch.  20;  code  (Shannon's),  §  1511;  (M.  &  V.), 
§1252. 

3.  Purchase  carries  franchises.— All  the  rights,  privileges, 

and  immunities  appertaining  to  the  franchises  sold  under  the 
judicial  proceedings  instituted  against  delinquent  railroads  by 
the  state  under  the  act  of  incorporation,  and  the  amendments 
thereto,  and  the  general  internal  improvement  law  of  the  state 
and  acts  amendatory  thereof,  shall  be  transferred  to,  and  vest 
in,  the  purchaser,  who  shall  hold  the  same  subject  to  all  the 
liens  and  liabilities  in  favor  of  the  state  as  now  provided  by  law 
against  the  railroad  companies.  Acts  Tenn.  1870-71,  ch.  23, 
§  10;  code  Tenn,  (Shannon's),  §  1512;  (M.  &  V.),  §  1253. 

-t.  Purchaser  under  foreclosure  proceedings;  rights  of  .—The 

purchasers  of  any  railroad  chartered  by  this  state,  and  lying 
in  whole  or  in  part  in  this  state,  sold  under  any  mortgage 
heretofore  or  hereafter  executed  by  it,  when  put  in  possession 
of  said  railroad  by  any  court  of  competent  jurisdiction,  shall 
have  the  same  right  to  operate  the  same  in  this  state  as  the 
incorporated  company  which  executed  the  mortgage.  Acts 
Tenn.  1877,  ch.  12,  sec.  1;  code  Tenn.  (Shannon's),  §1513; 
(M.  &  V. ),  g  1254. 

5.  Purchaser  under  foreclosure  proceedings  to  enforce 

State's  lien;  rights  Of.— Sale  of  delinquent  railroads  by  state 
to  enforce  its  lien  transfers  road,  appurtenances,  and  fran- 
chises to  purchaser,  and,  unless  the  company  was  purchaser, 
to  dissolve  corporation.  9  Lea  (Tenn.).  691;  see  also  12  Lea 
(Tenn. ;,  583,  for  exemption  of  purchaser  from  taxation. 

6.  May  purchase,  build,  lease,  or  sell  railroad,  or  any  part 

thereof,  in  any  State. — All  railroad  companies  of  this  state,  and 
any  other  state  or  states,  are  authorized  and  empowered  to  build, 
lease  or  let,  acquire  by  purchase,  lease  or  otherwise,  and 
operate,  hold  or  dispose  of  any  railroad  or  railroads  in  any 
state  or  states,  or  any  parts  or  portions  of  any  such  railroad  or 
railroads,  and  the  distribution  thereof,  as  may  be  determined 


GENERAL    TOWERS    OF    THE    N. ,    C.    A    ST.     L.     RV.  -  -  1 

upon  by  their  stockholders,  and  to  acquire  by  purchase  or 
otherwise,  and  hold  or  dispose  of  any  bonds  or  shares  of  the 
capital  stock  of  any  railroad  company  or  companies  in  any 
.state  or  stales,  and  to  indorse  and  guarantee  the  Inmds  of 
any  railroad  company  or  companies  in  any  state  or  states, 
whose  original  charter  of  incorporation  was  granted  by 
the  state  of  Tennessee;  Pwided,  That  the  same  be  ap- 
proved by  the  vote  of  three-fourths  in  amount  of  the  capital 
stock  of  said  company  present  and  voting,  either  in  person  or 
by  written  proxy,  at  a  regular  or  called  meeting  of  the  stock- 
holders of  said  company;  And,  provided  further,  That  sixty 
days'  notice  l>e  given  in  a  Memphis,  Knoxville,  and  Nashville 
daily  newspaper  of  the  time,  place,  and  purpose  of  the  meet- 
ing. Acts  Tenn.  1881,  ch.  9,  sec.  2;  1891,  ch.  (51;  code  Tenn. 
(S.),  §15-K>;  (M.  &  V.),  £1275. 

The  supreme  court  of  Tennessee  has  decided  that  the  above  act  of 
Tenn.  1881,  ch.  9,  did  not  repeal  the  special  limitations  imposed  by  acts 
of  1877,  ch.  72,  as  to  mortgages  by  consolidated  companies.  4  Pick..  140. 

7.  May  purchase  branches  and  extensions.— Any  and  all 

ra il road  companies  now  or  hereafter  existing  under  the  laws  of 
this  state,  or  of  this  state  and  any  other  state  or  states,  whose 
charter  of  incorporation  was  or  may  be  granted  by  this  state, 
are  hereby  authorized  and  empowered  to  acquire  the  line  or 
lines  of  any  other  railroad  company,  either  in  this  state  or  any 
other  state  or  states,  which  may  connect  with  and  form  parts 
and  parcels,  or  branches  or  extensions  of  the  line  of  such  com- 
pany chartered  by  this  state,  or  by  this  state  and  any  other 
state  or  states;  and  are  authorized  and  empowered  to  so  ac- 
quire such  branches  or  extensions  by  purchase,  lease,  or  other- 
wise, and  pay  for  the  same  by  the  issue  of  their  own  capital 
and  bonds,  or  by  guaranteeing  those  issued  by  the  company 
whose  line  may  be  so  acquired,  purchased  or  leased;  but  nothing 
in  this  section  shall  be  construed  so  as  to  authorize  the  acquisi- 
tion in  any  way  by  any  corporation  or  company  of  parallel  or 
competing  lines.  Acts  Tenn.,  1891,  ch.  125;  Code  (Shannon), 
§1521. 

56 


882  PURCHASE,    ETC. 

s.  Purchasers  of  railway  at  judicial  sale  may  organize 
into  corporate  company  and  operate  road,  with  franchises, 
rights,  powers,  etc.,  contained  in  charter  of  original  com- 
pany.— Whenever  the  property  and  franchises  of  any  railroad 
have  been  sold,  or  may  hereafter  be  sold,  under  any  judgment, 
decree,  or  process  from  any  of  the  courts  of  record  of  this 
state  for  the  payment  of  any  debt  due  from  said  incorporated 
company,  the  purchasers  at  said  sale,  or  their  assignees,  may 
organize  into  a  corporate  company  or  body,  with  the  right  to 
have,  hold,  and  operate  the  property  and  franchises  so  pur- 
chased, with  all  the  powers,  rights,  privileges,  and  immunities, 
and  subject  to  all  the  restrictions  imposed  by  the  original  char- 
ter and  amendments  thereto,  of  the  corporation  whose  property 
and  franchises  have  been  sold.  Acts  Tenn.  1879,  ch.  52,  sec. 
2;  code  Tenn.  (Shannon's),  §  1513a;  (M.  &  V.),  §1255. 

Purchasers,  under  foreclosure  sale,  of  part  of  road  cannot  be  re- 
quired to  build  entire  line. — It  has  been  held  that,  where  a  railroad 
company  mortgages  such  a  part  of  its  road  as  is  completed,  and  the  mort- 
gage is  foreclosed,  the  purchasers  are  aot  required  to  complete  the  entire 
road.  85  Pa.  St.,  501;  Cook  on  Corp.  (4th  ed.),  sec.  786. 

9.  Purchaser  at  foreclosure  sale  of  railway  lying  wholly 
or  partly  in  state  becomes  vested  with  franchises,  powers, 
etc.,  contained  in  act  of  incorporation  and  amendments 

thereto. — When  a  mortgage,  executed  as  provided  or  allowed 
by  law  (acts  of  Tenn.  1870-71,  ch.  116,  or  other  law),  upon 
the  franchises,  roadbeds,  superstructures,  and  property  of 
every  description  of  an  incorporated  railroad  lying  within  the 
state,  either  in  whole  or  in  part,  shall  be  foreclosed  in  any 
court  of  this  or  of  the  United  States  having  jurisdiction  thereof, 
by  sale  under  said  mortgage,  the  purchasers  at  said  sale  shall 
be  entitled  to  and  be  invested  with  the  said  franchises  and 
property,  and  with  all  the  rights,  privileges,  and  immunities 
appertaining  thereto  by  the  laws  of  this  state,  in  the  act  of 
incorporation  of  said  company  and  the  amendments  thereto, 
and  the  general  internal  improvement  law,  or  other  laws  of 
this  state,  irt  as  full  a  manner  as  the  said  company  or  compa- 
nies are  or  were.  Acts  Tenn.  1877,  ch.  12,  sec.  2;  code  Tenu. 
(Shannon),  §  1511;  (M.  &  V.),  §  1256. 


(IKNKKAI.    I'MUKUa    OF    THE    X. ,    C.    A    ST.     L.     RY.  883 

i".  Purchasers  may  organize  new  company. —  The  pur- 

ch:i>rrs  nt  the  snle  mentioned  in  the  preceding  section  may,  after 
being  put  in  possession  of  said  property,  meet  together,  adopt 
a  name  for  the  company  or  corjMmition  to  operate  said  railroad, 
and  elect  a  hoard  of  directors  of  not  less  than  three,  at  least 
one  of  whom  shall  reside  in  this  state.  (/</.,  sec.  3.)  Code 
Tenn.  (Shannon),  jj  1515;  (M.  &  V.),  §  1257. 

11.  What  interest  shall  entitle  to  one  vote.— At  such  meet- 
ing every  person  interested  in  the  said  purchase  shall  be  enti- 
tled  to  one  vote  for  every  $100  of  such  interest,  unless  the 
number  of  votes  to  which  each  party  shall  be  entitled,  and  the 
mode  of  representing  the  interest  of  the  purchasers,  shall  have 
been  previously  agreed  upon  among  the  parties  interested  in 
the  purchase.     (/£.)     Code  Tenn.  (Shannon),   g  1516;  (M.  & 
V.),  §  1258. 

12.  Organization,  etc.— The  board  of  directors  shall  proceed 
to  elect  a  president  and  such  other  officers  as  may  be  expedient 
for  the  proper  management  of  said  property,  fix  their  compen- 
sation and  duties,  and  adopt  by-laws  for  the  government  of  said 
company,  not  inconsistent  with  the  laws  of  this  state;  and  shall 
fix  the  amount  of  the  capital  stock  of  said  company,  and  the 
amount  of  stock  or  bonds,  or  both,  which  shall  represent  the 
interest  of  said  purchasers,  dividing  such  stock  into  shares  of 
$100  each.     (Ib.)     Code  Tenn.  (Shannon),  §  1517;  (M.  &  V.), 
§  1259. 

13.  Memoranda  to  be  filed  with  secretary  of  state.    Certif- 
icates Of  Organization. — The  said  board  of  directors  shall  make 
a  certificate  showing  the  name  of  the  corporation,  the  amount 
of  its  capital  stock,  the  shares  into  which  the  same  is  divided, 
the  number  and  residence  of  the  board  of  directors,  where  the 
road  lies,  and  the  name  or  names  by  which   it   has  heretofore 
been  chartered  and  known,  and  shall  cause  the  same  to  be 
signed  by  the  president  and  the  meml>ers  of  such  board,  and  to 
be  filed  with  the  secretary  of  state  of  this  state,  ami  thereupon 
the  said  purchasers  shall  IK;  a  Ixxly  corporate,  under  the  name 
so  adopted,  with  all  the  rights,  powers,  privileges,  immunities, 
and  franchises  possessed,  under  the  laws  of  this  state,  by  the 


884  PURCHASE,    ETC. 

company  or  companies  whose  road  and  franchises  were  sold, 
as  aforesaid,  under  the  acts  of  incorporation  thereof,  or  any 
amendments  thereto,  and  any  subsequent  act  or  acts  of 
this  state;  and  with  all  the  rights,  powers,  privileges,  and  fran- 
chises possessed  by  the  corporation  formed  and  organized  for 
the  building  of  railroads  under  the  code  of  this  state.  (Ib.) 
Code  Tenn"(S.),  §1518;  (M.  &  V.),  §1260. 

14.  Shares,  bonds,  etc.,  to  be  issued  by  directors.  —  The 

board  of  directors  shall  issue  to  the  parties  interested  in  the 
purchase  of  said  railroads  shares  of  the  capital  stock  thereof, 
of  §100  each,  to  such  amount  as  they  shall  determine,  in 
proportion  to  their  rights  and  interests  in  the  property,  which 
shares  shall  be  fully  paid,  and  not  liable  to  calls;  and  also  such 
bonds  and  obligations  as  they  may  determine.  (/£•)  Code 
Tenn.  (S.),  §  1519;  (M.  &  V.),  §  1261. 

It  is  expressly  provided  that  no  exemption  from  taxation,  which  was 
granted  by  the  original  charters,  shall  pass  to  the  purchasers  at  mort- 
gage or  judicial  sales.  Acts  Tenn.,  1877,  ch.  12,  sec.  2;  ch.  72,  sec.  3. 

The  last  five  sections  are  from  ch.  12  of  the  acts  of  1877,  and  relate  ex- 
clusively to  purchasers  at  sales  to  foreclose  mortgages  as  provided  in 
sec.  1140  of  T.  &  S's.  revised  statutes. 

Purchaser  gets  property  free  of  vendor's  debts,  when.— 

Where  one  corporation  purchases,  under  legislative  authority, 
the  property  and  franchises  of  another,  it  holds  the  property 
free  from  the  claims  of  creditors  that  were  not  liens,  as  if  it 
had  been  an  individual  transaction.  The  statute  of  most  states, 
however,  makes  certain  claims  liens.  See  94  Ky. ,  377. 

Who  to  authorize  stockholders  or  directors,  and  vote 

necessary. — The  acts  of  Tenn.  1881,  ch.  9,  as  amended  by 
act  1891,  ch.  61,  is  doubtless  the  controlling  act  on  this  sub- 
ject, and  should  be  followed.  See  case  of  Rogers  v.  Nashville, 
Chattanooga  &  8t,  Louis  Railway,  decided  November  9,  1898, 
by  United  States  circuit  court  of  appeals,  sitting  at  Cincinnati, 
but  not  yet  reported.  Under  it  the  proposition  to  purchase 
must  be  approved  by  three-fourths  in  amount  of  the  capital 
stock  of  said  company  present  and  voting,  either  in  person  or 
by  written  proxy,  at  a  regular  or  called  meeting  of  the  stock- 
holders, and  that  sixty  days'  notice  be  given  in  a  Memphis, 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RY.  885 

Knoxville,  and  Nashville  daily  newspaper,  of  the  time,  place, 
and  purpose  of  the  meeting. 

Under  the  ordinary  powers  granted  a  railroad  having'  its  termini  in 
this  state,  the  directors  have  no  power  to  purchase  other  railroads  with- 
out the  sanction  of  the  stockholders.  8  Bax.  (Tenn.),  108. 

Duty  of  purchasing  road  to  complete  and  operate  entire 
line  of  road  so  purchased  considered.— it  frequently  happens 

that  one  railway  company  will  purchase  the  pro|>erty,  fran- 
chises, etc.,  of  an  incompleted  road.  The  question  then  arises 
whether  or  not  the  purchasing  road  can  he  compelled  to  com- 
plete and  operate  the  road  so  purchased  as  an  entire  line 
between  the  termini  mentioned  in  its  original  charter.  This  is 
a  very  serious  question,  and  is  one  that  has  received  no  partic- 
ular judicial  notice  in  this  state.  For  a  discussion  of  the  sub- 
ject, however,  we  will  divide  the  purchased  roads  into  two 
classes.  First,  those  that  are  chartered  under  a  special  act  of 
the  legislature,  and,  second,  those  that  are  chartered  under  the 
general  act. 

As  to  the  first  class,  there  is  no  method  of  formulating  or 
classifying  their  provisions,  as  their  forms  vary  with  each  par- 
ticular charter.  Some  of  the  special  charters  make  it  a  condi- 
tion, or  at  least  an  imperative  duty,  that  the  road  so  chartered 
should  be  completed  and  operated  to  and  from  the  termini  men- 
tioned therein.  In  all  such  cases  it  is  very  clear  that  a  pur- 
chaser of  the  property  and  franchises  of  such  road  can  be 
compelled  by  mandamus  to  complete  and  operate  the  same 
throughout  its  entire  line.  91  U.  S.,  343;  17  Am.  L.  Reg. 
(N.  S.),  266;  103  N.  Y.,  95;  Elliott  on  Railroads,  sec.  638; 
24  L.  R.  A.,  564-8;  113  U.  S.,  424;  24  N.  Y.,  261;  s.  c., 
82  Am.  Dec.,  295;  Thompson  on  Corp.,  sec.  7826;  Rorer  on 
Railroads,  p.  572;  29  Conn.,  538. 

Many  of  the  special  charters,  however,  in  so  far  as  the  pro- 
visions for  completing  and  oj>erating  the  road  is  concerned,  is 
similar  to  that  provided  in  the  general  act,  and  hence  the  dis- 
cussion of  that  class  will  also  embrace  those. 

As  to  the  second  class,  that  is,  those  chartered  under  the  gen- 
eral act,  the  law  is  not  so  clear.  There  is  no  j>ositive  require- 


886  PURCHASE,    ETC. 

ment  in  these  charters  that  the  road  shall  be  completed  and  oper- 
ated from  and  to  the  points  mentioned  as  its  termini.  The  only 
provision  on  the  subject  is  the  following:  "Be  it  known,  That 
[here  insert  the  names  of  five  or  more  citizens  not  under  the 
age  of  twenty-one  years  applying  for  the  charter],  are  hereby 
constituted  a  body  politic  and  corporate,  by  the  name  and  style 
of  [here  insert  the  name],  for  the  purpose  of  constructing  a 

railway  from ,  in  the  county  of ,  to ,  in 

the  county  of "  Acts- Tenn.  1875,  ch.  142.  Code 

Tenn.  (S.),  §2412;  (M.  &  V.),  §  1891. 

This  section,  as  will  clearly  appear,  does  not,  in  express 
words,  require  the  complete  construction  and  operation  of  the 
road  from  and  to  the  points  mentioned  as  its  termini,  but  many 
decisions  of  other  states  hold  that,  by  implication,  the  language 
used  above  is  sufficient  to  warrant  that  construction.  The 
question  has  never  been  passed  upon  by  the  supreme  court  of 
Tennessee,  but  doubtless  will  be  construed,  when  tested,  into  a 
mere  license  or  permit,  which  would  not  support  a  mandamus 
to  complete.  Elliott  on  Railroads,  sec.  642.  See,  also,  2  Pick. 
(Tenn.),  554. 

It  is  very  clear  that  if  only  a  part  of  the  road  was  purchased 
the  purchasing  company  could  not  be  compelled  to  complete  or 
operate  the  road  further  than  it  had  purchased.  Thus  it  has 
been  held  that  where  a  railroad  company  mortgaged  such  a 
part  of  its  road  as  was  completed,  the  purchasers  under  fore- 
closure proceedings  could  not  be  compelled  to  complete  the  en- 
tire road.  85  Pa.  St.,  501;  Cook  on  Corp.  (4th  ed.),  sec.  786. 

Under  the  general  laws  of  the  State  of  Tennessee  there  is 
nothing  to  prevent  a  railroad  company  from  abandoning  its 
entire  right  of  way,  though  such  action  would  work  a  forfeiture 
of  its  charter,  a  failure  to  .build  the  entire  line  of  road,  as 
authorized  by  its  charter,  however,  is  not  a  ground  of  forfeit- 
ure in  this  state.  It  is  probable,  however,  that  it  cannot 
abandon  a  part  which  has  actually  been  constructed  and  in 
operation  without  such  result.  24  N.  Y. ,  161;  82  Am.  Dec., 
205;  17  Am.  L.  Ry.  (N.  S.),  266;  113  U.  S.,  424;  Elliott  on 
Railroads,  sec.  638;  2  Barn.  &  Aid.,  646;  36  Wis.,  467;  20 


GENERAL  POWERS  OF  THE  N.,  C.  &  ST.  L.  RV.     887 

N.  \V.  Rep.,  696;  24  S.  E.  Rep.,  154;  29  Conn.,  538;  142 
U.  S.,  492.  But  see  12  Gray,  180;  1  Shannon  (Tenn.),  511; 
120  111.,  48;  Uorcron  Railroads,  572;  24  L.  R.  A.,  564.  See 
also  91  U.  S.,  343;  103  U.  S.,  95. 

Under  the  acts  of  Tennessee,  1887,  ch.  39,  a  railroad  cora- 
pany  may  change  either  terminus  before  final  location  of  road. 
This  would  assist  in  many  cases. 

It  has  l>een  held  that  where  a  road  is  unfinished  a  court  of 
equity  may  have  it  completed  by  a  receiver.  100  U.  S.,  605. 

Railroads  chartered  under  general  law  in  Georgia  may  change  the 
general  direction  and  route  of  their  road,  when  and  how.  See  Code, 
Ga.,  1895,  22171. 

Power  of  Nashville,  Chattanooga  &  St.  Louis  Railway  over 

purchased  roads. — Where  the  railroad,  rights,  privileges,  and 
franchises  of  a  railroad  corporation,  whether  domestic  or  for- 
eign, are  purchased  by  the  Nashville,  Chattanooga  &  St.  Louis 
Railway,  it  has  the  same  powers  over  the  line  or  lines  of  such 
roads  as  the  original  companies  had.  If  such  original  compa- 
nies had  the  power  to  lease,  sell,  mortgage,  etc.,  then  the 
Nashville,  Chattanooga  &  St.  Louis  Railway,  as  the  legal  pur- 
chaser thereof,  would  also  be  vested  with  those  powers  over 
the  lines  of  such  roads  as  fully  and  completely  as  the  original 
companies  were.  Roger*  v.  ^\7.  C.  <&  St.  L.  Ry,  decided  Nov. 
9,  1898,  by  U.  S.  circuit  court  of  appeals,  sitting  at  Cincin- 
nati, but  not  yet  reported.  See,  also,  15  Lea  (Tenn.),  37;  112 
U.  S.,  610. 

Nashville.  Chattanooga  &  St.  Louis  Railway  may  purchase 
stock  in  other  roads,  when.— See  p.  074  herein. 

ALABAMA  ACTS  AS  TO  PURCHASING. 

[In  Alabama].  Power  of  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  purchase  roads  in  Alabama.— As  has  hereto- 
fore been  explained  in  the  preceding  chapter  on  leases,  a  corpora- 
tion acting  l>ey ond  the  jurisdiction  that  created  it,  in  the  absence 
of  statute  to  the  contrary,  may  ordinarily  do  those  things  which, 
by  express  grant  or  necessary  implication,  it  is  authorized  or 


888  PURCHASE,    ETC. 

empowered  to  do  by  the  laws  of  the  state  granting  its  charter. 
36  Am.  &  Eng.  R.  R.  Cas.,  449;  74  Texas,  474;  8  S.  W.  Rep., 
533;  35  Kan.,  236;  10  Pac.  Rep.,  596;  24  Am.  &  Eng,  R.  R. 
Cas.,  34;  3  Head  (Tenn.),  337;  72  111.,  50;  22  Am.  Rep.,  133; 
29  Barb.  (N.  Y.),  650;  Thompson  on  Corp.,  §7920;  1  R. 
(Ky.),  8. 

A  corporation  cannot  by  comity,  however,  exercise  powers  within  the 
state  wh>,h  a  domestic  corporation  is  prevented  from  exercisiujr  under 
the  cou  v  ution  of  the  state,  nor  those  things  prohibited  by  statute. 
52  Am.  &  ,  iag.  R.  R.  Cas.,  115;  50  Fed.  Rep.,  338. 

As  the  Nashville,  Chattanooga  &  St.  Louis  Railway  possesses 
the  power  to  purchase  roads  in  Tennessee,  as  heretofore  shown, 
it  would  follow  that  it  possesses  the  power  in  Alabama,  in  the 
absence  of  any  legal  legislation  to  the  contrary,  which  does  not' 
now  exist. 

Both,  roads  must  have  power  ;  one  to  sell  and  other  to  buy. — 161 
D.  S.,  686;  97  Ky.,  675. 

Domestic  corporation  of  Alabama  may  sell  its  property 
and  franchise  to  foreign  corporation.— Whenever  all  of  the 

capital  stock  of  a  railroad  corporation  chartered  under  the  laws 
of  this  state  is  owned  by  a  railroad  corporation  chartered  by 
the  laws  of  another  state,  it  shall  be  lawful  for  the  domestic 
corporation  to  sell  and  convey  to  the  corporation  owning  its 
stock  all  of  its  property,  roadbed,  rights,  and  franchises;  and 
it  shall  be  lawful  also  for  any  railroad  corporation  chartered 
by  the  laws  of  another  state,  owning  or  operating  by  lease  or 
otherwise  any  railroad  in  this  state,  to  purchase  at  judicial  sale 
or  otherwise,  or  to  lease  and  to  hold  and  use  in  such  railroad,  or 
to  acquire,  hold  and  use  all  or  any  part  of  the  capital  stock  or 
of  the  property,  roadbeds,  rights  and  franchises  of  any  rail- 
road corporation  of  this  state,  with  whose  railroad  the  railroad 
of  the  purchasing  or  leasing  corporation  or  its  predecessor  in 
interest  shall  be  connected,  either  directly  or  by  means  of  an 
intervening  line,  but  the  purchasing  or  leasing  corporation 
shall  keep  an  office  and  an  agent  in  this  state,  and  such  railroad, 
so  purchased  or  leased,  shall  be  in  all  respects  subject  to  the 
laws  of  this' state,  as  if  owned  by  a  domestic  corporation,  and 


GENERAL    POWERS   OF   THE    X. ,    C.    A   ST.    L.    RV. 

all  liens  and  rights  of  creditors  shall  be  preserved  unimpaired, 
and  any  and  all  purchases  and  leases,  such  as  are  authorized  by 
this  act,  heretofore  made  are  hereby  legalized.  Acts  Alabama, 
1898-9,  N7o.  329,  p.  28. 

Aid  to,  or  purchase  and  lease  of  other  roads.— A  corpora- 
tion chartered  under  the  laws  of  this  or  any  other  state,  here- 
tofore or  hereafter  created  for  the  purpose  of  building,  con- 
structing, or  operating  a  railroad,  may,  at  any  time,  by  means 
of  subscription  to  the  capital  of  any  other  corporation  or  com- 
pany, or  otherwise,  aid  such  corporation  or  company  in  the  con- 
struction of  its  railroad,  for  the  purpose  of  forming  a  connection 
with  the  road  owned  by  such  corporation  or  company  furnish- 
ing aid;  or  any  railroad  corporation,  organized  in  pursuance  of 
the  laws  of  this  or  any  other  state,  may  lease  or  purchase  any 
part  or  all  of  any  railroad  constructed  by  any  other  corporation 
or  company,  if  the  lines  of  such  road  are  continuous  or  con- 
nected, upon  such  terms  and  conditions  as  may  be  agreed  on 
between  the  corporations  or  companies,  respectively;  or  any 
two  or  more  railroad  corporations  or  companies,  whose  lines 
are  so  connected,  may  enter  into  any  arrangement  for  their 
common  benefit,  consistent  with  and  calculated  to  promote  the 
objects  for  which  they  were  created;  but  no  such  aid  shall  be 
furnished,  nor  any  purchase,  lease,  or  arrangement  perfected, 
until  a  meeting  of  the  stockholders  of  each  of  such  corporations 
or  companies  has  been  called  by  the  directors  thereof,  at  such 
time  and  place  and  in  such  manner  as  they  shall  designate:  and 
the  holders  of  a  majority  in  value  of  the  stock  of  such  corpora- 
tion or  company,  represented  at  such  meeting,  in  person  or  by 
proxy,  and  voting  thereat,  shall  have  assented  thereto.  Code 
Ala.  1896,  §  1170. 

Unaided  by  statute  a  railroad  has  no  power  to  lease  its  road  and 
property:  Af.  <t  C.  R.  Co.  v.  G-niysnn,  88  Ala.,  572;  Oeorye  v.  C.  /?.  A-  B.  Co., 
101  Ala.,  607.  A  lease  is  invalid  until  both  corporations  have  held  meet- 
ing's as  required  and  the  holders  of  a  majority  of  the  stock  have 
assented.  Qconjc  v.  C.  R.  A-  B.  Co.,  101  Ala.,  007. 

Same. — Any  railroad  company  incorporated  by  the  laws  of 
any  other  state  and  now  owning  or  oj>erating,  or  which  is  or 
may  IK?  authorized  to  own  or  operate,  by  lease  or  otherwise, 


890  PURCHASE,    ETC. 

any  railroad  in  this  state,  is  authorized  and  empowered  upon 
the  .resolution  of  its  board  of  directors,  to  aid  any  railroad 
company  incorporated  under  any  general  or  special  law  of  this 
state,  in  the  construction,  renovation,  or  operation  of  its  rail- 
road, by  the  indorsement  or  guaranty  of  its  securities,  which 
have  been  or  may  be  issued  for  such  purpose,  in  such  manner 
as  may  be  agreed  upon  by  the  board  of  directors  of  the  con- 
tracting companies,  or  by  leasing,  or  by  guaranteeing  the 
rentals  of  any  lease  of  any  such  railroad,  on  such  terms  as  may 
be  agreed  upon  by  the  respective  boards  of  directors.  Code 
Ala.  1896,  £1171. 

Lines  may  be  extended,  or  branch  roads  acquired  or  con- 
structed.— A  corporation,  now  existing  or  which  may  here- 
after be  organized  for  the  building,  constructing,  and  operating 
a  railroad,  has  authority,  for  the  purpose  of  extending  its  line, 
or  forming  a  connection,  to  acquire,  hold,  and  operate  a  rail- 
road without  the  state;  or  within  the  state,  may  extend  its 
road,  or  may  build,  construct,  and  operate  branch  roads  from 
any  point  or  points  on  its  line.  Code  Ala.  1896,  §  1172. 

A  railroad  has  implied  power  to  construct  necessary  turnouts  and 
switches,  but  power  to  construct  a  branch  is  only  given  by  statute. 
Arrington  v.  S.  &  W.  R.  Co..  95  Ala.,  434. 

Mode  of  making  purchase  or  extension,  or  of  construction, 

Of  branch  roads. — Such  purchase  must  be  made  by  resolution 
of  the  board  of  directors,  which  must  be  submitted  to  a  meeting 
of  the  stockholders,  called  for  the  purpose  of  its  consideration; 
of  the  time  and  place  of  which  meeting,  and  of  the  purpose  for 
which  it  is  called,  thirty  days'  notice  must  be  given  to  each 
stockholder  whose  residence  is  known,  and  by  publication  for 
four  consecutive  weeks  in  a  newspaper  published  at  the  princi- 
pal place  of  business  of  the  corporation,  and,  at  such  meeting, 
must  be  approved  by  the  vote  of  a  majority,  in  value,  of  the 
stockholders;  and,  if  such  resolution  is  so  approved,  a  copy 
thereof,  and  of  the  proceedings  of  the  meeting  of  the  stock- 
holders, certified  by  the  president  and  secretary,  under  the 
corporate  seal,  must  be  filed  and  recorded  in  the  office  of  the 
secretarv  of  state.  Such  extension  or  construction  of  such 


GENERAL   POWERS   OF    THE    X.,    C.    A    ST.     I..     RV.  891 

branch  road  must  he  made  by  resolution  of  the  board  of  direc- 
tors, to  l>e  entered  in  the  record  of  the  proceedings  of  the  cor- 
poration, and  designating  the  j>oint  from  which  and  the  point 
to  which  such  extension  or  such  branch  road  is  to  be  con- 
structed. A  copy  of  such  resolution,  certified  by  the  president 
and  secretary,  under  the  corporate  seal,  must  be  filed  and  re- 
corded in  the  office  of  the  secretary  of  state,  and  thereafter, 
for  the  purpose  of  making  such  extension  or  building  such 
branch  road,  such  corjxjration  shall  have  all  the  rights,  powers, 
and  immunities  which  are  now,  or  may  hereafter,  by  the  laws 
of  this  state,  be,  granted  to  and  vested  in  railroad  corporations 
under  and  by  virtue  of  the  general  incorporation  laws  of  the 
state.  Code  Ala.  1896,  §  1173. 

Before  a  branch  road  can  be  constructed,  the  prescribed  steps  must 
have  been  taken.  Arrlngton  v.  S.  &  W.  R.  Co.,  95  Ala.,  434. 

Courts  of  equity  may  order  sale  of  railroad,  when.— All 

courts  exercising  equity  jurisdiction  in  this  state  be,  and  they 
are  hereby,  authorized  and  empowered  by  decree  to  order  the 
sale  of  the  property  and  franchises  of  quasi  public  corporations, 
at  the  suit  of  a  creditor  or  creditors  having  a  judgment  or  de- 
cree against  such  quasi  public  corporations.  Acts  Ala.,  1898- 
99,  No.  709,  sec.  1,  p.  98. 

Purchasers  at,  duties  Of. — The  purchaser  or  purchasers  un- 
der such  decree,  if  not  a  corporation  authorized  by  the  laws  of 
this  state  to  purchase  and  hold  the  property  of  such  quasi  pub- 
lic corporation,  shall,  within  thirty  days  after  such  sale  and 
conveyance,  become  incorporated,  as  provided  by  the  general 
incorporation  laws  of  this  state  for  the  incorporation  of  pur- 
chasers under  forclosure  sales  of  the  property  of  like  corpora- 
tions, such  purchaser  or  purchasers  to  associate  with  himself  or 
themselves  the  requisite  number  of  other  )x?rsons  to  l>ecome  in- 
corporated. Acts  Ala.,  1898-99,  No.  709,  sec.  2,  p.  98. 

Purchasers  at,  rights  Of.— Upon  the  organization  of  such 
corporation,  and  the  conveyance  to  it  of  the  proj>erty  and  fran- 
chises of  such  quasi  public  corporation  by  such  purchaser  or 
purchasers,  such  corporation  shall  Iwcoine,  and  be  entitled  to, 
and  shall  have,  hold,  and  enjoy,  all  such  property  rights  and 
franchises.  Acts  Ala.,  1898-99,  No.  709,  sec.  3,  p.  98. 


892  PURCHASE,    ETC. 

Purchasers  of  railroads  in  Alabama  may  organize  as  a 

Corporation;  hOW. — The  purchasers  of  a  railroad  existing  un- 
der the  laws  of  this  state,  not  being  less  than  seven  in  number, 
at  any  judicial  sale,  or  other  sale  by  authority  of  law,  made 
since  the  adoption  of  the  present  constitution,  or  which  may 
be  hereafter  made,  may  organize  as  a  corporation,  entitling 
themselves,  their  associates  and  successors,  to  all  the  powers, 
rights,  and  capacity  of  a  corporation  organized  under  the  pro- 
visions of  this  article.  Code  Ala..  1896,  §  1181. 

Mode  Of  Organization. — Such  purchasers  must  make  a  decla- 
ration, in  writing,  signed  by  each  of  them,  stating: 

1.  The  corporate  name  and  style  adopted  by  them. 

2.  Their  names  and  places  of  residence,  the  capital  stock  of 
the  proposed  corporation,  and  the  number  of  shares  into  which 
it  is  divided. 

3.  The    purpose   to    organize  as  a  corporation    under    this 
article,  the  property  purchased  by  them,  the  name  of  the  cor- 
poration to  which  it  belonged,  and  the  sale  at  which  they  pur- 
chased. 

4.  Such  other   matters  as  they  may  deem   it  desirable  to 
state;  which  declaration  must  be  filed  and  recorded  in  the  office 
of  the  secretary  of  state;  and,  upon  the  filing  and  record  of 
such  declaration,  the  secretary  must  issue  to  such  purchasers, 
their  associates  and  successors,  a  certificate  of  incorporation, 
in   the  manner  hereinbefore  provided,  under  the  seal  of  the 
state,  which  must  be  recorded  in  his  office;  and  thereafter  such 
corporation  must  be  deemed  duly  organized.      Code  Ala.,  1896, 
§  11S2. 

Purchasers  of  railroads  in  Alabama  under  power  in  a 

mortgage  Or  deed  Of  tUSt. — The  purchasers  of  a  railroad,  the 
property  of  a  corporation,  at  a  sale  under  a  power  in  a  mort- 
gage or  deed  of  trust,  or  under  a  decree  foreclosing  a  mortgage, 
deed  of  trust,  or  other  security  of  such  mortgage,  deed  of 
trust,  or  other  security  embraced  the  franchises  of  such  cor- 
poration, are  entitled  to,  and  shall  have,  hold,  and  enjoy  such 
franchises;  Prwided,  They  organize  as  a  corporation,  under 


GENERAL   POWERS    OF   THE    X.,    C.    A    ST.    L.    RV.  893 

the   provisions  of  this  article,  in   the  mode  prescril>ed    in  the 
preceding  section.      Code  Ala.  1S96,  5$  1183. 

Consolidation  does  not  o|>erate  to  brin«f  into  existence  a  new  corpora- 
tion.  Meyer  v.  Juhnxdm.  53  Ala.,  237;  B.C.  04  Ala..  <i<>3.  Corporation 
organized  by  purchasers  succeeds  to  franchises  and  powers  of  old  cor- 
poration; as  to  ownership  of  property  and  liabilities,  it  i.«.  new.  M.  tfr  .V. 
R.  Co.  v.  Stclner,  <>1  Ala..  559. 

ACTS  OF  GEORGIA  AS  TO  PURCHASING. 

[In  Georgia.]  Power  of  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  purchase  roads  in  Georgia.— As  1ms  hereto- 
fore been  explained  in  the  chapter  on  leasing,  a  corporation 
acting  beyond  the  jurisdiction  that  created  it  can  ordinarily,  in 
the  absence  of  statute,  public  policy,  or  judicial  decisions  to 
the  contrary,  do  anything  in  the  latter  state  which  by  express 
grant  or  necessary  implication  it  is  authorized  or  empowered 
to  do  by  the  laws  of  the  state  granting  its  charter.  36  Am.  & 
Eng.  R.-R.  Cases,  441):  74  Texas,  474;  ft  S.  W.  Rep.,  533;  35 
Kan.,  236;  10  Pac.  Rep.,  51>6;  24  Am.  &  Eng.  R.  R.  Cases, 
34;  3  Head  (Tenn.),  337;  72  111.,  50;  22  Am.  Rep.,  133;  29 
Barb.  (N.  Y.),  650;  Thomp.  on  Corp.,  £  7920;  1  R.  (Ky. ),  8. 

As  the  power  to  purchase  is  possessed  in  Tennessee,  as  here- 
tofore shown,  it  would  follow  that  it  is  also  possessed  in 
Georgia  in  the  absence  of  statute  to  the  contrary,  which  does 
not  now  exist,  save  as  to  the  purchase  of  competing  lines. 

1.  Both  roads  must  possess  power;  one  to  sell  and  other  to  buy.— 161 
U.  S.,  686;  97  Ky.,  675. 

2.  A  foreign  corporation  cannot  by  comity  exercise  powers  within  a 
state  which  a  domestic  corporation  would  be  prevented  from  exercising 
under  the  constitution  of  the  state.     52  Am.  it  Eng.  11.  R.  Cases,   115,'  50 
Fed.  Rep.,  338,  nor  be  permitted  to  do  those  things  prohibited  by  statute. 

3.  Cannot  purchase   parallel  or  competing  lines.  — Railroads  char- 
tered under  general  laws  of  (teorgia  are  prohibited  from  purchasing  a 
competing  line  of  railroad  or  entering  into  contracts  with  them  calcu- 
lated to  defeat  or  lessen  competition.     Code  (Ja.  1895,   |2173;  nor  could 
the  Nashville.  Chattanooga  &  St.  Louis  Railway  do  so.     See  below. 

Railroads  chartered  under  general  laws  of  Georgia  may 

purchase  Other  roadS,  not  Competing,  etc.— Said  railroad  com- 
pany shall  have  the  power  to  make  contracts  with  any  railroad 


894  ri  ucttASE,   ETC. 

compmy  which  has  constructed,  or  shall  hereafter  construct, 
any  railroad  within  this  state,  or  any  other  state,  that  will 
enable  said  cohipany  to  run  their  roads  in  connection  with  each 
other,  and  merge  their  stocks,  or  to  consolidate  with  any  such 
company  within  or  without  the  state,  or  to  lease  or  to  purchase 
the  property  of  any  other  such  company,  and  hold,  use,  and 
occupy  the  same  in  such  manner  as  they  may  deem  most  ben- 
eficial to  their  interest;  Prodded,  That  no  railroad  shall  pur- 
chase a  competing  line  of  railroad  or  enter  into  any  contract 
with  a  competing  line  of  railroad  calculated  to  defeat  or  lessen 
competition  in  this  state;  and  any  violation  of  this  section  shall 
subject  the  corporation  to  all  penalties  incident  to  such  violation 
of  the  law.  Code  Ga.  1895,  §  2173. 

Railroads  chartered  under  general  law  may  sell  or  lease 
their  roads  to,  or  consolidate  with,  other  companies.— Any 

railroad  company  incorporated  under  the  provisions  of  this 
article  shall  have  authority  to  sell,  lease,  assign,  or  transfer  its 
stock,  property,  and  franchises  to,  or  to  consolidate  the  same 
with,  those  of  any  other  railroad  company  incorporated  under 
the  laws  of  this  or  any  other  state,  or  of  the  United  States,  whose 
railroad  within  or  without  this  state  shall  connect  with,  or  form 
a  continuous  line  with,  the  railroad  of  the  company  incorpo- 
rated under  this  law,  upon  such  terms  as  may  be  agreed  upon; 
and,  conversely,  any  such  corporation  organized  under  the 
provisions  of  this  article  may  purchase,  lease,  consolidate  with, 
absorb  and  merge  into  itself  the  stock,  property,  and  franchises 
of  any  other  railroad  company  incorporated  under  the  laws  of 
this  or  any  other  state,  or  the  United  States,  whose  railroad 
within  or  without  this  state  shall  connect  with,  or  form  a  con- 
tinuous line  or  system  with,  the  railroad  of  such  company  in- 
corporated under  this  law,  upon  such  terms  as  may  be  agreed 
upon.  And  it  shall  be  lawful  for  any  railroad  company  or 
corporation  now  or  hereafter  formed  by  the  consolidation  of 
one  or  more  railroad  companies  or  corporations  organized 
under  the  laws  of  this  state,  or  under  the  laws  of  this  state  and 
any  other  states,  with  one  or  more  companies  or  corporations 
organized  under  the  laws  of  any  other  state,  or  under  the  laws 


GENERAL    POWERS   OF   THE    N.,    C.    <fe    ST.    L.    RV.  895 

of  this  and  other  states,  to  issue  its  bonds  and  stock,  as  pro- 
vided for  in  this  article,  in  such  amounts  as  they  may  deem 
iKTi-ssary  for  the  purpose  of  jHiying  or  exchanging  the  same 
for  or  retiring1  any  bonds  or  stocks  theretofore  issued  by  either 
of  the  said  companies  or  corporations  so  merged,  purchased,  or 
consolidated,  or  for  any  other  puri>ose,  and  to  the  amount  au- 
thorized by  the  laws  of  the  state  under  which  either  of  said 
companies  or  corporations  so  consolidated  was  organized,  and, 
to  secure  the  same,  in  case  of  bonds,  by  mortgages  or  trust 
deeds  upon  its  real  or  personal  property,  franchises,  rights, 
and  privileges,  whether  within  or  without  this  state;  l*rovidfd^ 
That  no  railroad  company  shall  make  any  contract  under  the 
provisions  of  this  section  with  any  other  railroad  company 
which  is  a  competing  company  that  is  calculated  to  defeat  or 
lessen  competition  in  this  state  or  to  encourage  monopoly. 
Code  Ga.  1895,  §  2179. 

Purchasers  at  judicial  sales  of  railroads  in  Georgia; 

rights  Of. — In  case  of  sale  of  any  railroad  heretofore  incorpo- 
rated by  virtue  of  any  general  or  special  law,  or  which  may 
hereafter  IK)  incorporated  by  virtue  of  this  article,  or  any  part 
thereof  constructed  or  in  course  of  construction,  or  by  virtue  of 
any  trust  deed,  or  any  foreclosure  of  any  mortgage  thereon,  or 
any  judicial  sale,  the  party  or  parties  acquiring  titles  under 
such  sales,  and  their  associates,  successors  or  assigns,  shall 
have  or  acquire  thereby,  and  shall  exercise  and  enjoy  thereafter 
the  same  rights,  privileges,  grants,  franchises,  immunities  and 
advantages  in  or  by  said  trust  deed  enumerated  and  conveyed 
which  belonged  to  and  were  enjoyed  by  the  company  making 
such  deed  or  mortgage,  or  contracting  such  debt,  so  far  as  the 
same  relate  or  ap|>ertnin  to  that  portion  of  said  road  or  the  part 
or  line  thereof  mentioned  or  described  and  conveyed  by  said 
mortgage  or  trust  deed  and  no  further,  as  fully  and  absolutely 
in  all  respects  as  said  railroad  company,  office-holders,  share- 
holders, and  agents  of  such  company  might  or  could  have  had, 
had  not  such  sale  or  purchase  taken  place;  P/ttrufaf,  That 
nothing  in  this  article  shall  be  construed  to  reserve  any  exemp- 
tion from  taxation,  either  state,  municipal  or  county,  or  any 


896  PURCHASE,    ETC. 

special  rights,  privileges  and  immunities  that  are  not  herein 
authorized  to  be  granted  to  each  and  all  railroads  alike,  in  con- 
formity with  the  present  constitution  of  Georgia.  Code  Ga., 
1895;  §  2167  (11). 

Purchasers  at  judicial  sales  of  railroads  in  Georgia ;  reor- 
ganization Of. — Such  purchasers,  their  associates  or  assigns, 
may  organize  anew  by  tiling  a  petition  with  the  secretary  of 
state,  requesting  to  be  substituted  for  the  original  petitioners 
and  stockholders,  with  all  their  powers,  rights,  privileges, 
duties,  and  liabilities  under  this  article  when  said  new  incor- 
porators  may  proceed  anew  by  electing  new  directors  as  pro- 
vided by  this  article,  and  may  distribute  and  dispose  of  stock, 
and  may  conduct  their  business  generally  as  provided  by  this 
article,  and  such  purchaser  or  purchasers  and  their  associates 
shall  thereupon  be  a  corporation,  with  all  the  powers,  privileges, 
and  franchises  conferred  by,  and  be  subject  to  the  provisions  of 
this  section.  But  no  debt,  trust  deeds,  mortgages,  or  other 
liens  shall  be  made  or  created  by  the  first  railroad  company,  or 
b}'  the  purchasers,  except  on  the  terms  and  conditions  as  pre- 
scribed in  section  2165.  Code  Ga.  1895,  §2167(12). 

Purchasers  at  judicial  sales  of  railroads  in  Georgia ;  how 

incorporated. — The  application  for  incorporation  by  the  pur- 
chaser or  purchasers  may  be  made  by  said  purchaser  or  pur- 
chasers alone,  or  with  such  associates  as  may  be  desired,  and 
the  petition  shall  set  forth  only  the  facts  showing  the  sale  and 
purchase  as  in  this  section  provided.  If  the  purchasers  desire 
any  additional  powers  not  contained  in  the  original  charter  of 
the  railroad  company,  but  which  may  be  obtained  under  this 
article,  the  said  petition  shall  set  forth  specifically  what  addi- 
tional powers  are  so  desired.  The  petition  shall  be  verified  by 
one  of  the  purchasers  or  by  his  counsel.  When  the  petition  is 
filed  as  aforesaid,  the  secretary  of  state  shall  examine  the  same 
and  issue  a  certificate  under  the  great  seal  of  the  state  in  the 
form  prescribed,  varied  to  suit  the  particular  case.  The  peti- 
tioners shall  pay  to  the  treasurer  of  the  state  a  fee  of  fifty  dol- 
lars for  this  service.  Code  Ga.  1895,  §  2168. 


'   KM: K\I,    POWERS   OF   THE    N.,    C.    A   ST.    L.    RY. 

Contract  for  conditional  sale  and  purchase  of  rolling 

Stock,  etc. — Any  person  or  corporation  may  make  a  contract  in 
writing  with  any  railroad  company  or  person  owning  or  oper- 
ating a  railroad  in  this  state  to  furnish  said  company  or  person 
with  rolling  stock  or  other  equipment,  deliverable  either  imme- 
diately or  subsequently  at  stipulated  periods;  by  the  terms  of 
which  contract  the  purchase  money  for  said  property,  in  whole 
or  in  part,  is  to  be  paid  thereafter,  and  in  which  contract  it  may 
be  agreed  that  the  title  to  the  property  so  sold,  or  contracted  to 
be  sold,  shall  not  pass  to  or  vest  in  the  vendee  until  the  pur- 
chase money  for  the  same  shall  have  been  fully  paid,  notwith- 
standing the  delivery  of  such  property  to  and  the  possession  of 
the  same  by  the  vendee;  but  that  until  said  purchase  money 
shall  have  been  fully  paid,  the  title  to  said  property  shall  re- 
main in  said  vendor  and  his  or  its  assigns.  Code  Ga.,  1895, 
§  2326. 

Contracts  for  the  lease  Of  rolling  StOCk.— The  manufac- 
turer, owner  or  assigns  of  any  railroad  equipment  or  rolling 
stock  may  make  a  written  contract  for  the  lease  of  such  equip- 
ment or  rolling-stock  to  an}'  railroad  company  or  person  own- 
ing or  operating  a  railroad  in  this  state;  and  in  such  contract  it 
shall  be  lawful  to  stipulate  for  a  conditional  sale  of  said  prop- 
erty to  the  said  lessee  on  the  termination  of  such  lease,  and  to 
stipulate  that  the  rental  received  for  said  property  may,  as 
paid,  or,  when  fully  paid,  be  applied  and  treated  as  purchase 
money,  and  that  the  title  to  such  property  shall  not  vest  in 
such  lessee  or  vendee  until  the  amount  of  such  purchase  money 
shall  have  been  paid  in  full  to  the  lessor  or  vendor,  or  to  his 
or  its  assigns,  notwithstanding  the  delivery  of  such  property  to 
and  possession  of  the  same  by  such  lessee  or  vendee,  but  that 
until  such  purchase  money  shall  have  been  fully  paid,  the  title 
to  such  property  shall  remain  in  said  lessor  or  vendor,  or  in 
his  or  its  assigns.  Code  Ga.,  1895;  §  232T. 

Validity  and  record  of  contracts.— Every  such  contract 

hereby  authorized  shall  be  good,  valid,  and  effectual  to  retain 
the  title  to  said  property  in  said  vendor  or  lessor,  or  in  his  or 
its  assigns,  as  against  the  said  vendee  or  lessee,  and  against  all 

57 


898  PURCHASE,    ETC. 

persons  claiming  thereunder.  Such  contracts,  if  made  within 
this  state,  shall  be  executed  in  the  presence  of,  and  attested  by, 
or  be  approved  before,  a  notary  public  or  justice  of  any  court 
in  this  state,  or  a  clerk  of  the  superior  court.  If  made  with- 
out this  state,  it  shall  be  executed  in  the  presence  of,  and  at- 
tested by,  or  proved  before,  a  commissioner  of  deeds  for  the 
State  of  Georgia,  or  a  consul  or  vice  consul  of  the  United 
States  (the  certificates  of  the  foregoing  officers,  under  their 
seals,  being  evidence  of  the  fact),  or  by  a  judge  of  a  court  of 
record  in  the  state  where  executed.  Such  contract  shall  be  re- 
corded within  six  months  after  the  date  of  its  execution,  in  the 
office  of  the  clerk  of  the  superior  court  of  the  county  where  is 
situated  the  principal  office,  in  this  state,  of  the  said  railroad 
company.  Each  locomotive  engine  and  each  car  so  sold,  or 
contracted  to  be  sold  or  leased,  as  aforesaid,  shall  have  the 
name  of  the  vendor  or  lessor,  or  the  assignee  of  such  vendor  or 
lessor,  plainly  placed  or  marked  on  the  same,  or  be  otherwise 
so  marked  as  to  plainly  indicate  the  ownership  thereof.  Code 
Ga.,  1895,  §2328. 

ACTS  OF  KENTUCKY  AS  TO  PURCHASING. 

[In  Kentucky.]  Power  of  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  purchase  roads  in  Kentucky.— As  hereto- 
fore explained  in  the  discussion  of  the  Kentucky  law  in  the 
chapter  on  leases,  a  corporation  acting  beyond  the  jurisdiction 
that  created  it  can  do  ordinarily  anything  which,  by  express 
grant  or  necessary  implication,  it  is  authorized  or  empowered 
to  do  by  the  laws  of  the  state  granting  its  charter,  in  the  ab- 
sence of  statute,  public  policy,  or  judicial  decisions  of  the  lat- 
ter state  to  the  contrary.  29  Barb.  (N.  Y.),  650;  22  Am. 
Rep.,  133;  72  111  ,  50;  3  Head  (Tenn.),  337;  24  Am.  &  Eng. 
R.  R.  Cas.,  34;  10  Pac.  Rep.,  596;  35  Kan.,  236;  8  S.  W. 
Rep.,  533;  36  Am.  &  Eng.  R.  R.  Cas.,  449;  74  Texas,  474; 
Thompson  on  Corp.,  sec.  7920. 

As  the  power  to  purchase  is  possessed  in  Tennessee,  as  here- 
tofore shown,  it  would  follow  that  it  is  also  possessed  in  Ken- 


GENERAL  POWERS  OF  THE  X.,  C.  A  ST.  L.  RY.     899 

tucky  in  the  absence  of  any  law  to  the  contrary,  which  does 
not  now  exist,  save  as  to  the  purchase  of  parallel  or  competing 
lines. 

1.  Cannot  purchase  or  lease  parallel  or  competing1  lines. — It  is  pro- 
vided by  the  constitution  of  Kentucky  that  "  no  railroad,   telegraph, 
telephone,  bridge,  or  common  carrier  company  shall  consolidate  its  cap- 
ital stock,  franchises  or  property,  or  pool  its  earnings  in  whole  or  in 
part,  with  any  other  railroad,  telegraph,  telephone,  bridge,  or  common 
carrier  company  owning'  a  parallel  or  competing  line  or  structure,  or  ac- 
quire by  purchase,  lease  or  otherwise,  any  parallel  or  competing  line  or 
structure,  or  operate  the  same.'1    Code  Ky.,  1894,  p.  139,  5  201.     The  state 
mav  enjoin  such  purchasers.     97  Ky.,  675. 

The  word  "parallel,"  as  used  above,  was  not  used  according  to  its 
strictly  accurate  meaning  of  two  roads  constructed  &iul  dlxttint  apart 
throughout  their  whole  extent,  which  would  be  impracticable,  but  in 
the  sense  of  two  conforming  in  their  general  direction.  97  Ky. ,  675. 

2.  Foreign  corporations. —  A  foreign  corporation  cannot  by  comity 
exercise  powers  within  a  state  which  a  domestic  corporation  would  be 
prevented  from  exercising  under  the  constitution  of  the  state.     52  Am. 
&  Eng.  R.  R.  Cases.  115;  50  Fed.  Rep.,  33S.     Nor  do  those  things  prohib- 
ited by  statute,  public  policy,  or  judicial  decisions  of  the  latter  state. 

3.  As  to  whether  or  not  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way is  a  foreign  corporation  in  Kentucky,  see  discussion  of  Kentucky  law 
in  chapter  herein  on  leases.     If  it  is  not  a  foreign  corporation,  then  it 
possesses  the  power  to  purchase  under  its  charter  and  general  amenda- 
tory acts  of  Tennessee,  as  has  heretofore  been  explained. 

4.  Purchasers  under  foreclosure  proceeding's;  powers  of,  as  well  as 
powers  of  security  holders.     See  acts  Ky.,  1896,  p.  29,  ch.  21. 

5.  Both  roads  must  possess  power;  the  one  to  sell,  the  other  to  buy, 
in  order  to  make  purchase  legal.     161  U.  S.,  686  ;  97  Ky.,  675. 


CHAFFER   LXXIV. 

RULES    AND    REGULATIONS  —  WHAT    ARE     LEGAL  —  WHO    TO 
ENACT  — HOW  DIFFER  FROM  flY-LAWS. 

[Generally.]    Railways  may  make  reasonable  rules  and 

regulations. —  "All  railways  have  the  implied  authority,  as  in- 
cident to  their  corporate  character  and  purposes,  to  make  and 
enforce  all  reasonable  rules  and  regulations  for  the  transaction 
and  conduct  of  their  business,  which,  in  their  judgment,  may 


900  RULES    AND    REGULATIONS. 

be  necessary  for  the  successful,  convenient,  and  safe  conduct 
thereof.  Their  business  implies  a  degree  of  authority  almost  ab- 
solute in  the  management,  conduct,  and  control  of  their  trains  and 
the  persons  thereon,  as  necessary  for  their  common  safety,  and 
to  protect  themselves  from  imposition  and  wrong."  Rorer  on 
Railroads,  p.  227;  15  N.  Y.,  455;  24  Conn.,  249;  56  Pa.  St., 
294;  40  Miss.,  374;  Elliott  on  Railroads,  sees.  200,  41;  56 
111.,  365;  11  Lea  (Tenn.),  98,  533;  13  Lea  (Tenn.),  280,  507; 
14  Lea  (Tenn.),  129;  1  Pick.  (Tenn.),  627,  613;  8  Lea  (Tenn.), 
413;  5  Lea  (Tenn.),  124;  8  Lea  (Tenn.),  438;  16  Pick.  (Tenn.), 
213;  110  Ala.,  143. 

Rules  as  to  depots  and  other  buildings.— A  railway  com- 
pany may  make  and  enforce,  by  its  agents,  reasonable  and  nec- 
essary rules  for  the  transaction  of  its  business,  and  for  the 
proper  and  orderly  management  of  its  depots  and  other  build- 
ings open  to  the  public.  8  Lea  (Tenn.),  413. 

A  regulation  forbidding  hackmen,  peddlers,  expressmen,  and 
loafers  from  coming  within  the  passenger  depot  is  reasonable. 
8  Lea  (Tenn.),  413;  and  a  watchman  may  execute  the  regula- 
tion by  reasonable  but  necessary  force.  Id. 

It  is  also  reasonable  to  require  persons  in  and  around  the 
depot  building  to  be  orderly,  etc.  Elliott  on  Railroads,  sec.  200. 

Rules  as  tO  tickets. — A  railway  company  has  a  right  to 
make  regulations  requiring  passengers  to  purchase  tickets  be- 
fore entering  coaches  attached  to  their  freight  trains,  and  au- 
thorizing conductors  to  expel  persons  not  having  tickets,  even 
though  they  may  offer  money  in  payment  of  their  fare.  5  Lea 
(Tenn.),  124. 

But  if  company  had  been  usually  receiving  money  on  freight 
trains  for  fare,  passenger  is  entitled  to  notice  of  change  before 
he  can  be  expelled  for  non-compliance.  Same. 

Railway  may,  by  a  regulation  of  which  the  public  are  duly 
notified,  establish  a  higher  rate  of  fare  if  paid  on  the  cars  than 
in  the  purchase  of  a  ticket  for  the  same  trip,  but  the  fare  can 
in  no  event  exceed  the  charge  limited  by  the  charter  of  the  rail- 
way. 11  Lea  (Tenn.),  98;  95  Ala.,  92. 

A  regulation  is  reasonable  which  provides  that  passengers 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     901 

shall,  on  demand,  exhibit  his  ticket  on  entering  the  train,  and 
shall  afterwards,  on  like  demand,  surrender  it  or  pay  fare  un- 
der penalty  of  removing  from  car.  14  Lea  (Tenn.),  129;  El- 
liott on  R.  R. ,  sec.  200. 

A  conductor  cannot  be  required  to  hear  testimony  on  the 
subject  of  a  lost  ticket,  or  determine  its  weight  at  the  peril  of 
the  company,  under  a  rule  which  gives  him  no  discretion.  14 
Lea  (Tenn.),  129. 

Ladies'  Car. — A  railway  may  make  and  enforce  reasonable 
regulations  touching  the  car  in  which  a  passenger  may  be  re- 
quired to  take  passage,  provided  equal  and  proper  accommoda- 
tions are  furnished  to  all  passengers  holding  first  class  tickets; 
and  a  regulation  by  which  a  particular  coach  of  a  train  is  set 
apart  for  the  exclusive  accommodation  of  ladies  and  gentlemen 
traveling  with  ladies  is  reasonable.  1  Pick.  (Tenn.),  627,  613. 

Schedule  regulations. — A  railway  may  make  reasonable 
regulations  for  running  its  trains,  and-if  a  purchaser  of  a  ticket 
has  notice  of  same,  or  the  railway  company  had  given  such  pub- 
licity to  same  in  the  ticket  office,  and  by  posters  in  the  cars, 
that  a  person  of  ordinary  intelligence,  by  the  use  of  reasonable 
care  and  caution,  would  or  might  obtain  all  requisite  informa- 
tion, then  he  is  bound  by  the  regulations.  11  Lea.  (Tenn.),  533. 

Nor  will  the  railway  waive  its  rights  under  such  regulations 
by  the  conductor  punching  and  taking  up  the  ticket  after  hav- 
ing told  the  holder  that  the  train  did  not  stop  at  his  place  of 
destination,  the  ticket  holder  being  on  a  train  which,  according 
to  the  schedule,  did  not  stop  there.  11  Lea  (Tenn.),  533. 

Railway  may  adopt  rule  providing  that  particular  trains 
shall  stop  only  at  certain  stations,  where  it  furnishes  reasonable 
means  of  reaching  all  stations  on  its  road  by  other  trains.  26 
S.  W.  R.,  430;  71  Pa.  St.,  432;  10  Am.  R.,  711;  52  Ind., 
540;  53  111.,  510;  84  Tex.,  678;  52  Am.  &  Eng.  R.  R.  Cas., 
233;  118  Mo.,  199. 

Sleeping  car  regulations. — A  regulation  is  reasonable  that 
provides  that  none  but  holders  of  first-class  tickets  shall  ride 
on  sleeping  cars.  49  111.  App.,  75;  55  Ark.,  134;  52  Am.  & 
Eng.  R.  R.  Cases,  224. 


902  RULES    AND    REGULATIONS. 

Passenger  regulations. — It  is  also  reasonable  to  prohibit  pas- 
sengers from  riding  in  the  baggage  or  express  cars,  or  on  the 
engines,  platforms,  or  other  improper  places  of  danger.  30 
Fla.,  1;  52  Am.  &  Eng.  R.  R.  Cases,  409;  16  L.  R.  A.,  631; 
22  Barb.  (N.  Y.),  91;  155  Mass.,  371;  92  Pa.  St.,  21.  Also 
to  prohibit  disorderly  conduct  in  cars.  76  Pa.  St.,  510;  53 
Miss.,  200;  2  Sumn.  (U.  S.),  221.  Also  that  passengers  shall 
be  seated  in  the  cars  while  the  train  is  in  motion.  15  N.  Y., 
455;  Elliott  on  Railroads,  sec.  200. 

Railway  not  liable  for  injury  to  passenger  riding  on  freight  train  in 
known  violation  of  rules,  with  conductor's  permission.  10  Pick.  (Tenn.), 
383;  13  Pick.  (Tenn.),  579. 

So  it  is  a  reasonable  rule  to  require  passengers  to  make  a 
continuous  trip,  unless  they  procure  a  "stop-over"  ticket  or 
check.  11  Met.  (Mass.),  121;  45  Am.  Dec.,  190;  54  Wis., 
234;  41  Am.  R.,  23;  28  Barb.  (N.  Y.),  275;  46  N.  H.,  213. 
All  persons  refusing  to  comply  with  rules  may  be  excluded 
from  car  or  premises. 

Rules  as  to  baggage  and  freight  departments.— "  Like  rea- 
sonable rules  may  be  made  to  govern  the  receipt,  carriage,  and 
delivery  of  freight  and  baggage,  and  the  shipper  may  be  com- 
pelled to  conform  to  them."  40  Miss.,  374;  123  Pa.  St.,  140; 
108  N.  C.,  612;  90  Ga.,  694;  44  Ala.,  468,  cited  by  Elliott  on 
Railroads,  sec.  200. 

Rules  governing  employes.— "  It  is  not  only  the  right,  but 
it  is  also  the  duty,  of  railroad  companies  to  promulgate  and 
enforce  reasonable  and  necessary  rules  for  the  safety  of  its 
employes  in  the  management  and  operation  of  its  road."  El- 
liott on  R.  R.,  sec.  200,  citing  116  Pa.  St.,  628;  126  N.  Y., 
673;  133  N.  Y.,  666;  37  Ohio  St.,  549;  93  111.,  302;  73  Ind., 
261;  100  U.  S.,  213;  12  Pick.  (Tenn.),  129. 

These  rules  must  be  confined  to  the  management  of  the  company's 
affairs.  The  company  cannot  pass  rules  regulating  right  of  employes 
to  trade  with  particular  merchants  (code  Tenn.  (S.),  §  6882),  nor  to  vote 
(code  Tenn.  (S.),  §6884),  nor  in  selecting  their  physicians  (code  Tenn. 
(S.).  g6879j,  etc. 

Employes  must  obey  these  rules,  or  they  cannot  recover  if 
injured.  13  Lea  (Tenn.),  280. 


GENERAL    POWERS   OF   THE    N.,    C.    4    ST.    L.    RV.  903 

They  must  know  and  obey  the  rules,  though  they  are  not 
held  to  strict  obedience  to  neglected  or  disused  rules.  12 
Pick.  (Tenn.),  129. 

Who  to  enact  rules  and  regulations;  bow  differ  from 

by-laws. — It  has  been  decided  in  this  state  that  all  by-laws, 
orders,  and  resolutions  adopted  by  a  railway  company  are 
always  under  the  control  of  a  majority  of  the  stockholders, 
unless  expressly  provided  otherwise  by  the  charter,  and  may 
be  repealed,  altered,  or  modified  from  time  to  time  by  the 
majority.  5  Sneed,  566-8.  The  directors  of  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  have  authority,  however,  to 
pass  all  by-laws.  See  discussion  under  heading,  "By-laws," 
and  method  of  amending  them. 

There  is  a  distinction  between  a  by-law  and  a  rule  or  regula- 
tion. The  former  are  for  the  government  of  the  members  and 
officers  in  their  dealings  with  the  corporation,  and  must  be 
enacted  or  adopted  by  the  body  of  stockholders,  or  directors. 
The  latter,  on  the  other  hand,  relate  to  the  government  of  the 
company's  employes  and  servants,  and  of  passengers  and  others 
of  the  public  transacting  business  with  the  company,  and  may 
usually  be  made  by  any  officer  or  agent  of  the  corporation  duly 
authorized  to  control  the  business  or  property  to  which  they 
relate.  Elliott  on  R.  R.,  sec.  199;  38  S.  C.,  529.  It  has 
even  been  held  that,  where  a  local  station  agent  is  given  charge 
of  the  depot  building  and  station  grounds,  he  may  make  rea- 
sonable rules  for  the  regulation  of  persons  having  business  to 
transact  with  the  company,  and  may  exclude  persons  who 
refuse  to  conform  to  such  regulations,  and  others  who  come 
to  the  station  for  purposes  of  their  own  not  connected  with 
the  company's  business.  Elliott  on  R.  R.,  sec.  303;  7  Met. 
(Mass.),  596. 

Construction  Of  rules.— The  general  rule  in  Tennessee  is 
that  the  construction  of  a  written  instrument  introduced  in  evi- 
dence, if  complete  and  intelligible  in  itself,  is  matter  of  law  for 
the  court,  expert  testimony  being  admissible  in  proper  cases  to 
aid  the  court.  13  Lea,  280;  14  Lea,  129;  16  Pick.  (Tenn.), 
213. 


904:  SALES,    ETC. 

Car  service  rules. — Railways  may  generally  pass  such  rea- 
sonable rules  and  regulations  as  to  the  service  of  cars  as  the 
nature  of  their  business  requires.  The  question,  however,  as 
to  whether  the  rules  of  car  service  associations  for  detention  of 
cars  and  the  time  fixed  for  loading  and  unloading  are  reason- 
able, are  questions  of  fact.  98  Ky.,  152. 


CHAPTER  LXXV. 

SALES  — POWER  TO  SELL  RAILROAD— ROLLING  STOCK,  FRAN- 
CHISES, ETC.— WHO  TO  AUTHORIZE. 

[In  Tennessee.]  Power  of  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  sell  its  railroad  franchises,  etc.— it  is  a  well 

established  principle  of  law  that,  in  order  to  render  the  sale  by 
a  railway  company  of  its  roads,  franchises,  etc.,  valid,  the 
power  to  sell  must  be  conferred  upon  it  either  in  its  charter, 
amendments  thereto,  or  by  the  general  law.  161  U.  S.,  677- 
691;  145  U.  S.,  393-404;  4  Pick.  (Tenn.),  153;  101  U.  S., 
71;  130  U.  S.,  1;  Jones  on  Railroad  Securities,  sees.  1  to  10; 
139  U.  S.,  24;  160  U.  S.,  514;  86  Tenn.,  603;  163  U.  S., 
564;  88  Tenn.,  138,  152;  Thompson  on  Corp.,  sec.  6137;  El- 
liott on  Railroads,  sees.  488,  67,  519;  152  U.  S.,  191.  It  has 
been  held,  however,  that  this  rule  does  not  apply  to  property  not 
necessary  to  enable  the  corporation  to  perform  its  duties  to  the 
public.  99  U.  S.,  48,  57;  22  Wall.,  527;  Elliott  on  Railroads, 
sec.  488. 

Charter  provisions. — The  only  charter  provision  authorizing 
the  railway  to  sell  is  to  be  found  in  section  1,  page  1,  herein, 
and  is  as  follows:  The  said  railway  "  shall  be  capable  in  law  to 
buy,  receive  by  gift,  hold,  sell,  and  convey  real  and  personal 
estate  as  hereinafter  provided,"  etc.  This,  however,  would 
hardly  authorize  the  sale  of  its  railway,  franchises,  etc,  but 
would  doubtless  be  held  to  apply  to  real  and  personal  estate 
not  necessary  to  enable  the  corporation  to  perform  its  duties  to 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RY.  905 

the  public.  There  are  no  amendments  to  the  charter  upon  the 
subject. 

1.  May  sell  under  the  general  law.  however.— All  railroad 

companies  of  this  state,  and  any  other  state  or  states,  are 
authorized  and  empowered  to  build,  lease  or  let,  acquire  by 
purchase,  lease  or  otherwise,  and  operate,  hold,  or  dispose  of 
any  railroad,  or  railroads  in  any  state  or  states,  or  any  parts  or 
portions  of  any  such  railroad  or  railroads,  and  the  distribution 
thereof,  as  may  be  determined  upon  by  their  stockholders,  and 
to  acquire  by  purchase  or  otherwise,  and  hold  or  dispose  of 
any  bonds  or  shares  of  the  capital  stock  of  any  railroad  com- 
pany or  companies  in  any  state  or  states,  and  to  indorse 
and  guarantee  the  bonds  of  any  railroad  company  or  companies 
in  any  state  or  states,  whose  original  charter  of  incorporation 
was  granted  by  the  state  of  Tennessee;  Provided,  That  the 
same  be  approved  by  the  vote  of  three-fourths  in  amount  of 
the  capital  stock  of  said  company  present  and  voting,  either  in 
person  or  by  written  proxy,  at  a  regular  or  called  meeting  of 
the  stockholders  of  said  company;  And  provided  furt  far,  That 
sixty  days'  notice  be  given  in  a  Memphis,  Knoxville,  and 
Nashville  daily  newspaper,  of  the  time,  place,  and  purpose  of 
the  meeting.  Acts  Tenn.  1881,  ch.  9,  sec.  2,  as  amended  by 
acts  Tenn.  1891,  ch.  61;  code  Tenn.  (S.),  §  1540.  See  4  Pick., 
140. 

This  act  does  not  expressly  authorize  a  sale,  but  the  use 
therein  of  the  word  "dispose"  in  its  connection,  would  doubt- 
less authorize  it. 

2.  Same. — All  corporations  now  or  hereafter  existing  under 
the  laws  of  this  state,  whether  incorporated  under  special  or 
general  laws  of  the  state,  shall  have  the  power,  and  they  are 
hereby  authorized  and  empowered,  to  lease  and  dispose  of  their 
property  and  franchises,  or  any  part  thereof,  to  any  corpora- 
tion of  this  or  any  other  state  engaged  in  or  carrying  on,  or 
authorized  by  its  charter  to  carry  on,  in  this  or  any  other  state 
the  same  general   business  as  is  authorized  by  the  charter  of 
any  such  lessor  corporation;  and  said  corporations  shall  likewise 
have  the  authority  and  power,  and  are  hereby  authorized,  to  make 


906  SALES,    ETC. 

any  contract  for  the  use,  enjoyment,  and  operation  of  their  prop- 
erty and  franchises,  or  any  part  thereof,  with  any  such  other 
corporation  of  this  or  any  other  state  on  such  terms  and  con- 
ditions as  may  be  agreed  upon  between  the  contracting  corpo- 
rations; and  such  lessee  corporation,  or  corporations,  is  author- 
ized and  empowered  to  make  and  carry  out  such  leases  and 
contracts;  Provided,  however,  That  any  such  leases  or  con- 
tracts when  made  by  or  under  the  direction  of  the  board  of 
directors  of  the  contracting  corporations,  shall  be  authorized 
or  approved  by  the  vote  of  a  majority  in  amount  of  the  stock 
of  the  lessor  corporation  present  or  represented  at  a  regular  or 
called  meeting  of  the  stockholders  of  said  corporation;  Pro- 
vided farther,  That  sixty  days'  notice  of  such  meeting  be  given 
in  a  Memphis,  Knoxville,  and  Nashville  daily  newspaper  of  the 
time,  place  and  purpose  of  such  meeting;  and,  Provided  fur- 
ther, That  where  the  lessee  corporation  is  a  corporation  of  this 
state,  the  authority  or  approval  of  its  stockholders  shall  in  like 
manner  be  obtained  to  the  contract  or  lease. 

This  act  shall  not  be  so  construed  as  to  authorize  any  cor- 
poration of  this  or  any  other  state  to  lease  or  purchase  any  rail- 
road and  line  that  is  a  competitor  for  the  same  business  with 
any  line  already  owned  or  under  control  by  lease  or  otherwise, 
or  two  lines  of  railway  that  are  competitors  for  the  same  busi- 
ness in  this  state.  Acts  Tenn.  1887,  ch.  198,  p.  329;  code 
Tenn.  (S.),  §§2043,  2044,  2045,  2046a. 

The  above  act  seems  to  apply  particularly  to  leases,  but  may  be  broad 
enough  to  cover  sales,  and  hence  is  inserted  here. 

Power  to  mortgage,  however,  does  not  of  itself  give  power 

tO  sell.— 4  N.  M.,  337;  20  Pac.  R.,  109;  Elliott  on  Rail- 
roads, sec.  519;  122  U.  S.,  561;  4  Pick.  (Tenn.),  153. 

Who  to  authorize,  stockholders  or  directors ;  vote  neces- 
sary.— Each  of  the  foregoing  acts  make  the  approval  of  the 
stockholders  necessary.  The  act  of  Tenn.  1881,  ch.  9,  sec. 
2,  as  amended  by  acts  1891,  ch.  61,  however,  should  be 
followed,  as  it  is  the  controlling  act.  It  provides,  "That 
the  same  be  approved  by  the  vote  of  three-fourths  in 
amount  of  the  capital  stock  of  said  company  present  and 


GENKK.U.    row  KK8   OF   THE    N.,    C.    £   ST.    L.    RV.  '.'"7 

voting,  cither  in  person  or  by  written  proxy,  at  a  regular  or 
called  meeting  of  the  stockholders  of  said  company;  and  that 
sixty  days'  notice  be  given  in  a  Memphis,  Knoxville,  and  Nash- 
ville daily  newspaper  of  the  time,  place,  and  purpose  of  the 
meeting." 

Power  to  sell  its  purchased  roads  in  Tennessee.  —  The 

Nashville,  Chattanooga  &  St.  Louis  Railway  has  purchased 
many  railroads  in  the  states  of  Tennessee,  Alabama,  Georgia, 
and  Kentucky,  together  with  their  rights,  privileges,  and  fran- 
chises. In  ascertaining  its  power  now  to  sell  those  roads  to 
other  companies,  regard  must  also  be  had  to  the  charters, 
amendments,  and  laws  of  the  respective  states  affecting  such 
roads.  In  other  words,  as  to  the  lines  of  the  roads  so  pur- 
chased, the  Nashville,  Chattanooga  &  St.  Louis  Railway  would 
be  vested  with  all  the  powers  and  privileges  and  subject  to  all 
the  duties  and  liabilities  of  the  respective  original  companies. 
If  they  had  the  power  to  sell,  then  the  Nashville,  Chattanooga 
&  St.  Louis  Railway  would  also  hare  that  power  as  to  those 
particular  lines  as  fully  and  completely  as  the  original  compa- 
nies had.  Rogers  v.  ^V.,  C.  cfc  St.  L.  Ry.  et  at.,  decided  No- 
vember 9,  1898,  by  the  United  States  circuit  court  of  appeals, 
sitting  at  Cincinnati,  but  which  opinion  has  not  yet  been  re- 
ported. See,  also,  15  Lea  (Tenn.),  37;  112  U.  S.,  610. 

To  render  sale  legal,  vendor  company  must  have  power  to 
sell  and  vendee  company  to  buy.— 161  U.  S.,  686;  97  Ky., 

675. 

Conditional  sale  of  rolling  stock  and  equipments.  —  in 

any  written  contract  of  or  for  the  sale  of  the  railroad  equip- 
ments or  rolling  stock,  deliverable  immediately  or  subsequently 
at  stipulated  periods,  by  the  terms  of  which  the  purchase 
money  in  whole  or  in  part  is  to  be  paid  in  the  future,  it  may  be 
agreed  that  the  title  to  the  property  so  sold  or  contracted  to  be 
sold  shall  not  pass  to  or  vest  in  the  vendee  until  the  purchase 
money  shall  have  been  fully  paid,  or  that  the  vendor  shall  have 
and  retain  a  lien  thereon  for  the  unpaid  purchase  money,  not- 
withstanding delivery  thereof  to  and  possession  by  the  vendee; 
Provided,  That  the  terms  of  credit  for  the  payment  of  the  pur- 


908  SALES,    ETC. 

chase  money  shall  not  exceed  six  years  from  the  execution  of 
the  contract.  Acts  Tenn.,  1885;  ch  96;  §  1;  CodeTenn.  (S.), 
3587. 

Same.  Leasing  clause  for  conditional  sale.— in  any  writ- 
ten contract  for  the  leasing  or  renting  of  railroad  equip- 
ments or  rolling  stock,  it  shall  be  lawful  to  stipulate  for  a  con- 
ditional sale  thereof  at  the  termination  of  such  lease,  and  to 
stipulate  that  the  rentals  received  may,  as  paid,  or  when  paid 
in  full,  be  applied  and  treated  as  purchase  money,  and  that  the 
title  to  such  property  shall  not  vest  in  such  lessee  or  vendee 
until  the  purchase  money  shall  have  been  paid  in  full,  notwith- 
standing delivery  to  and  possession  by  such  lessee  or  vendee, 
subject,  however,  to  the  proviso  obtained  in  the  above  section. 
Same;  §2;  CodeTenn.  (S.);  $3588. 

Same.  Contract  to  be  probated  and  registered,  and  roll- 
ing Stock  branded.  —  Every  such  contract  specified  in  the 
two  preceding  sections,  shall  be  good,  valid  and  effectual,  both 
in  law  and  equity,  against  all  purchasers  and  creditors.  Pro- 
vided, First,  the  same  shall  be  acknowledged  by  the  vendee  or 
lessee  before  some  officer  authorized  by  law  to  take  acknowl- 
edgments of  deeds  in  the  form  required  as  to  conveyance  of 
real  estate;  second,  such  instruments  shall  be  registered  in 
the  office  of  the  register  of  the  county  in  which,  at  the  time 
of  the  execution  thereof,  is  situated  the  principal  office  of 
the  vendee  or  lessee  in  this  state,  and  in  the  office  of  the  secre- 
tary of  state;  third,  each  locomotive  engine  or  car  so  sold,  or 
contracted  to  be  sold  or  leased,  as  aforesaid,  shall  have  the 
name  of  the  vendor  or  lessor,  or  the  assignee  of  such  vendor  or 
lessor,  plainly  placed  or  marked  on  each  side  thereof,  or  be 
otherwise  marked,  so  as  to  indicate  the  ownership  thereof. 
Same;  §3;  CodeTenn.  (S.);  §3589. 

Sections  four  and  five  of  the  above  act  provides  that  the  act  shall  not 
apply  to  sales  and  contracts  made  before  the  passage  of  this  act,  and 
that  acknowledgments  of  such  contracts  may  be  made  in  the  form  re- 
quired as  to  conveyances  of  real  estate. 

Sale  Of  freight  for  Charges.— See  p.  821,  et  *«#.,  herein. 


GENERAL    POWERS   OF   THE    N.,    C.    A   ST.    L.    RV.  '.' "'.• 

ACTS  OF  ALABAMA  RELATING  TO  SALES. 

[In  Alabama.]  Power  of  the  Nashville,  Chattanooga  & 
St.  Louis  Railway  to  sell  its  road  in  Alabama.— As  has  hereto- 
fore been  explained  in  the  chapter  on  leasing,  a  cor|x>ration 
acting  beyond  the  jurisdiction  that  created  it  can,  ordinarily, 
in  the  absence  of  statute,  public  policy,  or  judicial  decisions  to 
the  contrary,  do  anything  in  the  latter  state  which  by  express 
grant  or  necessary  implication  it  is  authorized  or  empowered 
to  do  by  the  laws  of  the  state  granting  its  charter.  1  It. 
(Ky.),  8;  36  Am.  &  Eng.  R.  R.  Cases,  447;  74  Texas,  474;  8 
S.  W.  Rep.,  533;  35  Kan.,  236;  10  Pac.  Rep.,  596;  24  Am. 
&  Eng.  R.  R.  Cases,  34;  3  Head  (Tenn.),  337;  72  111.,  50;  22 
Am.  Rep.,  133;  29  Barb.  (N.  Y.),  650;  Thomp.  on  Corp.,  sec. 
7920. 

As  the  power  to  sell  is  possessed  in  Tennessee,  as  heretofore 
shown,  it  would  follow  that  it  is  also  possessed  in  Alabama  in 
the  absence  of  statute,  public  policy,  or  judicial  decisions  to 
the  contrary,  none  of  which  now  exist. 

1.  Both  roads  must  possess  power,  one  to  sell,  the  other  to  buy. — 
161  U.  S.,  686;  97  Ky.,  675. 

2.  A  foreign  corporation  cannot,  however,  by  comity,  exercise  power* 
in  a  state  which  a  domestic  corporation  would  be  prevented  from  exer- 
cising under  the  constitution  of  the  state.     52  Am.  &  Eng.  R.  R.  Cases, 
115;  50  Fed.  Rep.,  338;  nor  be  permitted  to  do  those  things  prohibited  by 
statute. 

Domestic  corporations  of  Alabama  can  sell  their  property 
and  franchises  to  foreign  corporations.— See  preceding  chap- 
ter on  "Purchasing."  See  p.  888,  herein. 

Courts  of  equity  may  order  sales  of  railroads  in  Alabama, 

When.— See  acts  of  Ala.  1898-99,  No.  709,  p.  98.  See  also 
chapter  herein  on  "Purchasing." 

Power  to  sell  its  purchased  roads  in  Alabama. — The  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  has  purchased  many 
railroads  in  the  States  of  Alabama,  Georgia,'  Kentucky,  and 
Tennessee,  together  with  their  rights,  privileges,  and  fran- 
chises. 

In  ascertaining  its  power  now  to  sell  those  roads  to  other 
companies,  regard  must  also  be  had  to  the  charter,  amend- 


910  SALES,    ETC. 

ments,  and  laws  of  the  respective  states  affecting  such 
roads.  In  other  words,  as  to  the  lines  of  the  roads  thus  pur- 
chased, the  Nashville,  Chattanooga  &  St.  Louis  Railway  would 
be  vested  with  all  the  powers,  privileges,  and  franchises,  and 
subject  to  all  the  duties  and  liabilities  of  the  respective  original 
companies.  If  they  had  the  power  to  sell,  then  the  Nashville, 
Chattanooga  &  St.  Louis  Railway  would  also  have  that  power 
as  to  those  particular  lines  as  fully  and  completely  as  the  orig- 
inal companies  had.  Rogers  v.  N. ,  C.  <&  St.  L.  Ry.  et  al. , 
decided  November  9,  1898,  by  the  United  States  circuit  court 
of  appeals,  sitting  at  Cincinnati,  but  which  opinion  has  not  yet 
been  reported.  See,  also,  15  Lea  (Tenn.),  37;  112  U.  S. ,  610. 

Power  to  sell  its  purchased  roads  in  Alabama.— The  N., 

C.  &  St.  L.  Ry.  has  purchased  many  railroads  in  the  States  of 
Alabama,  Georgia,  Kentucky,  and  Tennessee,  together  with 
their  rights,  privileges,  and  franchises.  In  ascertaining  its 
power  now  to  sell  those  roads  to  other  companies,  regard  must 
also  be  had  to  the  charter,  amendment,  and  laws  of  the  re- 
spective states  affecting  such  roads.  In  other  words,  as  to  the 
lines  of  the  roads  thus  purchased,  the  N.,  C.  &  St.  L.  Ry. 
would  be  vested  with  all  the  powers,  privileges,  and  franchises, 
and  subject  to  all  the  duties  and  liabilities,  of  the  respective 
original  companies.  If  they  had  the  power  to  sell,  then  the 
N. ,  C.  &  St.  L.  Ry.  would  also  have  that  power,  as  to  those 
particular  lines,  as  fully  and  completely  as  the  original  com- 
panies had.  Rogers  v.  N.,  C.  &  St.  L.  Ry.  et  al.,  decided 
November  9,  1898,  by  the  United  States  circuit  court  of  ap- 
peals, sitting  at  Cincinnati,  but  which  opinion  has  not  yet  been 
reported.  See  also,  15  Lea  (Tenn.),  37;  112  U.  S.,  610. 

ACTS  OF  GEORGIA  RELATING  TO  SALES. 

[In  Georgia.]    Power  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  to  sell  its  road  in  Georgia.— As  has  heretofore 

been  explained  in  the  chapter  on  leasing,  a  corporation  acting 
beyond  the  jurisdiction  that  created  it  can  ordinarily,  in  the 
absence  of  statute,  public  policy,  or  judicial  decisions  to  the 


GENERAL    POWERS   OF    THE    N.,    C.    <k    ST.    L.    RY.  911 

contrary,  do  anything  in  the  latter  state  which,  by  express 
grant  or  necessary  implication,  it  is  authorized  or  empowered 
to  do  by  the  laws  of  the  state  granting  its  charter.  1  R.  (Ky.), 
8;  36  Am.  &  Eng.  R.  R.  Cas.,  447;  74  Texas,  474;  8  S.  W. 
Rep.,  533;  35  Kan.,  236;  10  Pac.  Rep.,  596;  24  Am.  &  Eng. 
R.  R.  Cas.,  34;  3  Head  (Tenn.),  337;  72  111.,  50;  22  Am. 
Rep.,  133;  29  Barb.  (N.  Y.),  650;  Thompson  on  Corp.,  sec. 
7920. 

As  the  power  to  sell  is  possessed  in  Tennessee,  as  heretofore 
shown,  it  would  follow  that  it  is  also  possessed  in  Georgia  in  the 
absence  of  statute,  public  policy,  or  judicial  decisions  to  the 
contrary,  none  of  which  now  exist,  except  as  to  competing 
lines. 

1.  Both  roads  must  possess  power— one  to  sell,  the  other  to  buy.— 
161  U.  S.,  686;  97  Ky.,  675. 

2.  A  foreign  corporation  cannot,  however,  by  comity,  exercise  powers 
in  a  state  which  a  domestic  corporation  would  be  prevented  from  exer- 
cising under  the  constitution  of  the  state  (52  Am.  &  Eng-.  R.  R.  Cas.,  115; 
50  Fed.  Rep.,  338),  nor  be  permitted  to  do  those  things  prohibited  by 
statute. 

3.  Cannot  sell  to  parallel  or  competing  lines. — Railroads  chartered 
under  general  laws  of  Georgia  are  prohibited  from  purchasing  a  com- 
peting line  of  railroad,  or  entering  into  contracts  with  them  to  defeat 
or  lesson  competition,  nor  can  the  Nashville,  Chattanooga  «fc  St.  Louis 
Railway  do  so.  Code  Ga.,  1895,  $2173.  For  act,  see  chapter  on  "pur- 
chasing," herein. 

Power  to  sell  its  purchased  roads  in  Georgia.— The  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  has  purchased  many 
railroads  in  the  States  of  Alabama,  Georgia,  Kentucky,  and 
Tennessee,  together  with  their  rights,  privileges,  and  fran- 
chises. 

In  ascertaining  its  power  now  to  sell  those  roads  to  other  com- 
panies, regard  must  also  be  had  to  the  charter,  amendments,  and 
laws  of  the  respective  states  affecting  such  roads.  In  other 
words,  as  to  the  lines  of  the  roads  thus  purchased,  the  Nash- 
ville, Chattanooga  &  St.  Louis  Railway  would  be  vested  with 
all  the  powers,  privileges,  and  franchises,  and  subject  to  all  the 
duties  anil  liabilities  of  the  respective  original  companies.  If 
they  had  the  power  to  sell,  then  the  Nashville,  Chattanooga  & 
St.  Louis  Railway  would  also  have  that  power,  as  to  those  jwirtic- 


912  SALES,    ETC. 

ular  lines,  as  fully  and  completely  as  the  original  companies 
had.  Rogers  v.  N. ,  C.  &  St.  L.  Ry.  et  al.,  decided  November 
9,  1898,  by  the  United  States  circuit  court  of  appeals,  sitting 
at  Cincinnati,  but  which  opinion  has  not  yet  been  reported. 
See  also  15  Lea  (Term.),  37;  112  U.  S.,  610. 

ACTS  OF  KENTUCKY  RELATING  TO  SALES. 

[in  Kentucky.]  Power  of  the  Nashville,  Chattanooga  & 
St.  Louis  Railway  to  sell  its  road  in  Kentucky.— As  has  here- 
tofore been  explained  in  the  chapter  on  leasing,  a  corporation 
acting  beyond  the  jurisdiction  that  created  it  can  ordinarily,  in 
the  absence  of  statute,  public  policy,  or  judicial  decisions  to 
the  contrary,  do  anything  in  the  latter  state  which  by  express 
grant  or  necessary  implication  it  is  authorized  or  empowered 
to  do  by  the  laws  of  the  state  granting  its  charter.  1  R.  (Ky.), 
8;  36  Am.  &  Eng.  R.  R.  Cases,  447;  74  Texas,  474;  8  S.  W. 
Rep.,  533;  35  Kas.,  236;  10  Pac.  Rep.,  596;  24  Am.  &  Eng. 
R.  R.  Cases,  34;  3  Head  (Tenn.),  337;  72  111.,  50;  22  Am., 
Rep.,  133;  29  Barb.  (N.  Y.),  650;  Thompson  on  Corp.,  §  7920. 

As  the  power  to  sell  is  possessed  in  Tennessee,  as  heretofore 
shown,  it  would  follow  that  it  is  also  possessed  in  Kentucky  in 
the  absence  of  statute,  public  policy,  or  judicial  decisions  to 
the  contrary,  none  of  which  now  exist,  except  as  to  parallel 
and  competing  lines. 

1.  Cannot  sell  to  parallel  or  competing  companies.  —It  is  provided  by 
the  constitution  of  Kentucky  that  "  No  railroad,  telegraph,  telephone, 
bridge  or  common  carrier  company  shall  consolidate  its  capital  stock, 
franchises,  or  property,  or  pool  its  earnings,  in  whole  or  in  part,  with 
any  other  railroad,  telegraph,   telephone,  bridge,   or   common   carrier 
company,  owning  a  parallel  or  competing  line  or  structure,  or  acquire 
by  purchase,  lease,   or  otherwise,   any   parallel  -or   competing   line   or 
structure,  or  operate  the  same."  Code  Ky.,  1894,  p.  139,  \  201.     The  state 
may  enjoin  such  purchase.     97  Ky.,  675. 

The  word  "  parallel,"  as  used  above,  was  not  used  according  to  its 
strictly  accurate  meaning  of  two  roads  constructed  equidistant  apart 
throughout  their  whole  extent,  wh;ch  would  be  impracticable,  but  in 
the  sense  of  two  conforming  in  their  general  direction.  97  Ky.,  675. 

2.  Foreign  corporations. — A  foreign  corporation  cannot  by  comity 
exercise  powers  within  a  state  which  a  domestic  corporation  would  be 


(JKXERAL    POWERS    OF   THE    N.,    C.    A   ST.    L.    RY.  913 

prevented  from  exercising'  under  the  constitution  of  the  state.  52  Am. 
&  EnR.  li.  ll.  Cases,  115  :  50  Fed.  Rep.,  338;  nor  do  those  thing*  prohibi- 
ted by  statute,  public  policv,  or  judicial  decisions  of  the  state.  1  B. 

(Ky.).  8- 

3.  As  to  whether  or  not  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way is  a  foreign  corporation  in  Kentucky,  see  discussion  of  Kentucky  law 
in  chapter  herein  on  leasing.     If  it  is  not  a  foreign  corporation,  then  it 
possesses  the  power  to  sell  under  its  charter  and  general  amendatory 
acts  of  Tennessee,  as  has  heretofore  been  explained. 

4.  The  vendor  company  must  have  power  to  sell,  and  the  vendee  com- 
panj*  to  purchase,  in  order  to  make  sale  valid.     161  LI.  S.,  686;  97  Ky.,  675. 

5.  Purchasers  under  foreclosure  proceeding's,  powers  of,  as  well  as 
powers  of  security  holders. — See  acts  Kentucky,  1896,  p.  29,  ch.  21. 

Power  to  sell  its  purchased  roads  in  Kentucky.  —  The 

Nashville,  Chattanooga  &  St.  Louis  Railway  has  purchased 
many  railroads  in  the  states  of  Alabama,  Georgia,  Kentucky 
and  Tennessee,  together  with  their  rights,  privileges  and  fran- 
chises. 

In  ascertaining  its  power  now  to  sell  those  roads  to  other 
companies,  regard  must  also  he  had  to  the  charter,  amend- 
ments and  laws  of  the  respective  states  affecting  such  roads. 
In  other  words,  as  to  the  lines  of  the  roads  thus  purchased  the 
Nashville,  Chattanooga  &  St.  Louis  Railway  would  l>e  vested 
with  all  the  powers,  privileges  and  franchises,  and  subject  to 
all  the  duties  and  liabilities  of  the  respective  original  companies. 
If  they  had  the  power  to  sell,  then  the  Nashville,  Chattanooga 
&  St.  Louis  Railway  would  also  have  that  power  as  to  those 
particular  lines  as  fully  and  completely  as  the  original  compa- 
nies had.  Roger*  v.  N.  C.  &  St.  L.  Ry.  ct  <*/,  decided  Novem- 
ber 9,  1898,  by  the  United  States  circuit  court  of  appeals,  sit- 
ting at  Cincinnati,  but  which  opinion  has  not  yet  been  reported. 
See  also  15  Lea  (Tenn.),  37;  112  U.  S.  610. 

58 


914  STATIONS,    ETC. 


CHAPTER  LXXVI. 

STATIONS— POWER    OF    COMPANY    TO    ABANDON— RULES    AND 
REGULATIONS  CONCERNING. 

Right  of  Nashville,  Chattanooga  &  St.  Louis  Railway  to 
abandon,  tear  down,  and  remove  stations.— it  is  a  well  es- 
tablished principle  of  law  that  in  the  absence  of  statute  of  the 
contrary,  a  railroad  company  may  locate  its  stations  on  the  line  of 
its  road  at  such  place  or  places  as  will  best  serve  its  own  inter- 
ests, having  regard  to  those  of  the  public.  It  can,  from  time 
to  time,  tear  down  and  remove  such  stations  as  may  have  al- 
already  been  built,  to  more  convenient  places  in  the  same  vi- 
cinity, and  in  some  cases  to  places  three  or  four  miles  distant. 
The  number,  size  and  locality  of  the  stations  are  left  almost  ex- 
clusively to  the  sound  discretion  of  the  managers  of  the  cor- 
porations, where  there  is  no  positive  statute  to  the  contrary, 
and  they  may  remove  them  to  such  place  or  places  as  an  eco- 
nomical administration  of  their  affairs  may  require.  142  U. 
S.,  492;  [35;  1096];  110  U.  S.,  667;  [28:  291-7];  104  N. 
Y.,  58,  66;  120  111.,  48;  132  111.,  559,  571;  103  N.  Y.',  195. 
See  also  12  Gray,  180;  18  Minn.,  40. 

1.  Above  law  inoperative  in  Georgia,  when. — The  above  law  would  be 
inoperative  in   Georgia,  inasmuch  as  the  railroad  commissioners  have 
power  to  require  the  location  of  such  depots,   and  the  establishment  of 
such  freight  and  passenger  buildings  as  the  condition  of  the  road,  the 
safety  of  freight,  and  the  public  comfort  and  convenience  may  require, 
upon  the  giving  of  such  railroad  company  to  be  affected  thereby  the  no- 
tice as  provided.     Code  Ga.,  1895;  \  2189. 

2.  Inoperative  in  Kentucky,  when. — It  is  provided  by  the  Kentucky 
statutes   that    "  Any   company   that   has   established    and   maintained 
throughout  the  year  for  five  consecutive  years,  a  passenger  station  at  a 
point  on  its  road,  shall  not  abandon  such  station,   nor  substantially  di- 
minish the  accommodations  furnished  by  the  stopping  of  trains  thereat, 
as  compared  with  that  furnished  at  other  substantially  similar  stations 
on  the  same  road  without  the  written  consent  of  the  railroad  commis- 
sion.    Code  Ky.,  1894;  §  772. 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    RV.  915 

3.  In  Alabama.— See  \  3490  of  Code  1896. 

4.  In  Tennessee. — Hy  Acts  1897,  113,  a  railroad  commission  was  ere- 
ated,  but  was  given  no  power  in  regard  to  stations. 

Rules  and  regulations  concerning.— [See  rules  and  regula- 

lations,  p.  899,  herein. 


CHAPTER  LXXVII. 

STOCKHOLDERS— MEETINGS— NOTICE    OF  — QUORUM— VOTING— 

QUALIFICATION    FOR— WHO  MAY    VOTE— ELECTIONS 

AND  LAWS  AFFECTING  GENERALLY. 

Meetings  of  stockholders;  charter  provisions  as  to.— Section 

9  of  the  charter  provided  for  the  first  meeting  of  stockholders 
and  the  election  of  directors.  It  further  provided  that  the 
stockholders  should  at  this  meeting  fix  on  the  day  and  place, 
or  places,  where  the  subsequent  election  of  directors  should  lie 
held,  and  that  such  elections  should  thenceforth  be  annually 
made.  It  was  also  provided  therein  that  if  the  day  of  annual 
election  should  pass  without  any  election  of  directors,  the 
corporation  should  not  thereby  l)e  dissolved,  but  that  it  should 
be  lawful  on  any  other  day  to  hold  and  make  such  elections  in 
such  manner  as  may  be  prescribed  by  a  by-law  of  the  corpo- 
ration. Charter,  sec.  9,  p.  7  herein.  This  section  was  subse- 
quently amended,  however,  by  the  acts  of  Tenn.  1857-58, 
ch.  8,  so  that  the  stockholders  could  at  any  meeting  fix  on 
the  day  and  place  where  subsequent  meetings  of  stockholders 
and  election  of  directors  shall  be  held.  Acts  Tenn.  1857-58, 
ch.  8. 

General  and  annual  meetings;  by-laws  as  to.— in  pursuance 

of  the  charter  provisions,  the  railway  company  has  passed  the 
following  by-laws  as  to  stockholders'  meetings: 

1.   Time  and  place  Of  holding.— A  general  meeting  of  the 
stockholders  shall  take  place  annually,  on  the  first  Wednesday 


916  STOCKHOLDERS,    ETC. 

after  the  second  Tuesday  of  September,  in  the  city  of  Nash- 
ville, at  which  an  election  for  fifteen  directors  of  the  company 
shall  -be  held.  Notice  shall  be  given  by  publication  in  one  or 
more  of  the  newspapers  of  the  state,  as  may  be  ordered  by  the 
board  of  directors. 

2.  Adjourned  meeting. — Should  the  time  fixed  for  the  an- 
uual   election    of    directors    pass    without   an    election    being 
effected,  the  same  may  be  held  on  such  subsequent  day  as  may 
be  designated  by  the  board  of  directors,  or  by  the  stockholders 
at  a  general  meeting,  notice  of  which  election  shall  be  given  in 
the  manner  aforesaid. 

3.  Officers  bold  till  successors  elected.— in  all  cases  the 

directors  for  the  time  being,  and  the  officers  elected  by  them, 
shall  continue  in  office  until  their  successors  shall  be  elected. 

4.  Quorum. — The  presence,  in  person  or  by  proxy,  of  those 
who  are  the  owners  of  a  majority  of  the  stock  of  the  company 
shall  be  necessary  to  constitute  a  legal  meeting  of  the  stock- 
holders, authorized  to  transact  business.     See  p.  646  herein. 

Special  meetings ;  who  may  call  and  for  what  purpose.— 

The  charter  provides  that  the  board  of  directors  shall  have 
power  to  call  a  general  meeting  of  the  stockholders  when  they 
may  deem  it  expedient.  Charter,  sec.  18,  p.  11  herein. 

There  is  no  by-law  of  the  company  providing  for  the  call  of 
special  meetings  of  stockholders.  The  call  of  regular  meetings 
is  provided  for,  but  not  special.  This  being  so,  the  board  of 
directors  alone  have  power  to  call  special  meetings.  This  can 
be  changed,  however,  by  subsequent  by-laws,  should  it  be 
deemed  advisable. 

The  by-laws,  however,  provide  for  special  meetings  of  the  directors. 
See  p.  647  herein. 

Notices  of  special  and  regular  meetings.— Notice  should 

always  be  given  to  each  stockholder  of  all  special  meetings,  in 
order  to  make  them  legal.  As  to  regular  stated  meetings, 
fixed  by  the  charter  or  by-laws,  it  is  generally  different.  As 
to  them,  no  notice  need  be  given,  unless  specifically  required 
by  statute  or  by-law,  for  members  are  bound  to  take  notice  of 
them.  22  N.  Y.,  128;  35  Ohio  St.,  10;  11  Vt.,  385;  Elliott 


GENERAL  POWERS  OF  THE  N.,  C.  A  ST.  L.  RY.     917 

on  R.  R.,  sec.  164;  Thompson  on  Corp.,  sec.  708;  53  Am. 
Dec.,  450;  8  Fed.  Rep.,  66;  11  Pick.  (Tenn.),  484,  485. 

The  by-laws,  however,  of  the  Nashville,  Chattanooga  &  St. 
Louis  Railway  require  that  notice  of  general  meetings  of  stock- 
holders shall  be  given  by  publication  in  one  or  more  of  the 
newspapers  of  the  state,  as  may  be  ordered  by  the  board  of 
directors.  No  extra  notice  need  be  given  of  adjourned  meet- 
ings however.  Thomp.  on  Corp.,  sec.  720. 

Length  of  time  notice  must  be  given  for  regular  and  special 

meetings. — The  by-laws  provide  that  notice  of  general  meet- 
ings shall  be  given  by  publication  in  one  or  more  of  the  news- 
papers of  the  state,  as  may  be  ordered  by  the  board  of 
directors,  but  specifies  no  length  of  time.  Reasonable  time 
should  be  allowed,  however,  so  as  to  enable  all  the  stockholders 
to  receive  the  notice  and  reach  the  place  of  meeting  in  ample 
time  therefor.  The  word  general  meeting  in  the  above  by- 
laws is  intended  for  regular  meeting. 

In  addition  to  the  above  by-law  upon  the  subject  the  statutes 
of  Tennessee,  Alabama,  Georgia,  and  Kentucky  require  that 
specified  lengths  of  time  shall  be  allowed  for  notices  for  par- 
ticular purposes,  even  though  the  business  is  to  be  transacted 
at  a  regular  meeting.  Thus  to  mortgage,  sell,  or  purchase  a 
railway  in  Tennessee  the  law  requires  that  sixty  dasy'  notice 
be  given  in  a  Memphis,  Knoxville,  and  Nashville  daily  news- 
paper of  the  time,  place,  and  purpose  of  the  meeting,  whether 
regular  or  called  meeting.  The  laws  of  Alabama,  Georgia, 
and  Kentucky  have  also  provisions  regulating  mortgages, 
sales,  leases,  purchases,  etc. ,  of  railways  in  those  states,  all  of 
which  is  set  out  herein  under  their  particular  heading.  For 
length  of  notice,  therefore,  in  each  particular  instance,  see  dis- 
cussion under  its  particular  heading  herein. 

As  to  special  meetings,  the  length  of  notice  is  generally  fixed 
by  statute  where  the  meeting  is  for  some  purpose  other  than 
the  transaction  of  its  ordinary  affairs,  as,  for  instance,  the 
mortgage  or  purchase  of  a  road.  The  length  of  notice  in  all 
such  cases  can  be  found  in  the  discussion  of  the  particular 
heading.  If  the  special  meeting  is  to  transact  ordinary  busi- 
ness, then  reasonable  notice  alone  is  sufficient. 


918  STOCKHOLDERS,    ETC. 

When  notice  must  state  object  of  meeting.— "if  a  partic- 
ular day  in  each  year  is  appointed  for  the  transaction  of  all  busi- 
ness, a  notice  of  the  particular  business  to  be  done  is  not  nec- 
essary [unless  required  by  statute — as,  for  instance,  in  the 
cases  of  sales,  mortgages,  etc.,  as  heretofore  pointed  out].  It 
has  been  reasoned  that  where  the  statutory  provisions  in  regard 
to  annual  meetings  are  general,  such  meetings  are,  ex  m  termini, 
for  the  transaction  of  all  business  incident  to  the  corporate 
powers  and  interests.  36  Me.,  78;  22  N.  Y.,  128.  More- 
over, the  notice  of  a  special  meeting,  when  it  is  held  for  the 
transaction  of  ordinary  business,  need  not  state  the  object  of 
the  meeting.  But  where  the  meeting  is  called  for  the  purpose 
of  transacting  business  of  special  importance,  not  within  the 
general  routine  of  corporate  business,  upon  a  day  not  expressly 
set  apart  for  that  particular  transaction,  unless  the  notice  of 
the  meeting  stated  the  nature  of  such  business,  all  acts  done 
thereat  will  be  voidable,  if  not  absolutely  void."  Thompson 
on  Corp.,  sec.  717.  See  11  Pick.  (Tenn.),  486,  487. 

Quorum;  what  number  necessary.— The  by-laws  of  the 

company  provide  that  ' '  the  presence,  in  person  or  by  proxy, 
of  those  who  are  the  owners  of  a  majority  of  the  stock  of  the 
company  shall  be  necessary  to  constitute  a  legal  meeting  of  the 
stockholders  authorized  to  transact  business."  (See  p.  646 
herein.) 

At  stated  annual  meetings  a  majority  of  those  present  may 
act.  Thompson  on  Corp.,  sec.  726;  92  Mo.,  79;  11  Am. 
Rep.,  253.  See  11  Pick.  (Tenn.),  485-487. 

Adjourned  meetings. — It  is  a  well  established  principle  of 
law  that  should  the  business  of  a  regular  or  called  meeting  not 
be  completed  on  the  day  set,  the  meeting  may  be  adjourned  to  a 
subsequent  day,  and  no  new  notice  thereof  need  be  sent  to  the 
members.  21  N.  Y.,  296;  11  Vt,  385;  Thompson  on  Corp., 
sec.  720.  It  is  always  better,  however,  to  renotify,  as  some 
authorities  hold  it  is  necessary. 

Meetings  OUt  Of  State. — It  may  be  generally  said  that  no 
corporation  can  hold  a  legal  meeting  of  its  stockholders  out  of 
the  state  of  its  creation,  and  that  all  votes  and  proceedings  had 
thereat  are  void.  Thompson  on  Corp.,  sec.  696.  Directors, 


GENERAL    POWERS   OF   THE    N. ,    C.    <fe    ST.    L.     RV.  919 

however,  may  meet  anywhere.  34  N.  Y.,  208;  45  Ga.,  34; 
35  Mo.,  13;  63  Barb.,  415;  Rorer  on  Railroads,  p.  211; 
Thompson  on  Corp.,  sec.  3933. 

The  supreme  court  of  the  United  States  has  held,  however, 
that  proceedings  at  stockholders'  meetings  are  binding  upon  all 
those  participating,  though  held  without  call  or  notice,  and 
outside  of  the  state  where  the  company  was  incorporated,  if  there 
is  no  statutory  restriction  of  corporate  action  to  the  limits  of 
the  state.  139  U.  S.,  417;  [35;  229.]  Of  course  those  not 
present  and  participating  would  not  be  bound,  however,  and 
could  vitiate  the  proceedings. 

Election  Of  directors.     (See  Directors,  how  chosen.) 
Judges  and  Clerks  Of  election. — The  directors  have  power  to 
appoint  three  judges  and  two  clerks  to  hold  the  election  for 
directors.     Acts  1847-8,  ch.  70,  sec.  2. 

Voting;  proxies;  scale;  how  taken.— Section  20  of  the 

charter  provides  that  "stockholders  may  vote  in  person  or  by 
proxy,  and  in  the  election  of  directors,  and  in  voting  on  all 
questions  which  come  before  a  meeting  of  stockholders,  or  which 
may  be  submitted  to  their  decision  in  any  other  manner,  that 
the  vote  should  be  taken  according  to  a  scale  therein  set  out/ 

o 

but  by  acts  of  Tennessee,  1868-9,  ch.  2,  p.  83,  this  section 
was  amended,  and  the  amendment  accepted  by  the  company 
September  20,  1875,  so  as  to  provide  that  thereafter  "in  all 
elections  held  by  the  company  every  stockholder  shall  l>e  en- 
titled to  one  vote  for  each  share  of  stock  owned  by  him.''  In 
the  election  of  directors,  therefore,  as  well  as  in  all  other  elec- 
tions, each  stockholder  is  now  entitled  to  as  many  votes  as  he 
has  shares  of  stock. 

This  amendment  was  valid.  See  case  of  Roycm  v.  X.,  C.  A  St.  L.  Ry., 
decided,  November  0,  1898,  by  the  United  States  circuit  court  of  appeals, 
sitting  at  Cincinnati,  but  which  has  not  yet  been  reported. 

Qualifications  of  stockholders  to  vote  at  elections.—  Under 

the  charter  no.  stockholder  is  allowed  to  vote  in  any  general  or 
other  election  who  shall  not  have  held  in  his  own  right  the 
share  on  which  he  offers  to  vote  at  least  three  months  previous 
to  such  election.  Charter,  sec.  19,  p.  12  herein. 


920  STOCKHOLDERS,     ETC. 

A  proper  construction  of  this  section  would  require  that  the 
stockholder  should  hold  his  stock  continuously  for  the  three 
months  preceding  the  election  in  order  to  vote  it. 

Stockholder  not  disqualified  to  vote  because  interested  in 

SUbject-matter  Of  resolution  or  election.— Directors  and  stock- 
holders stand  upon  different  footing  so  far  as  their  right  to  vote 
is  concerned.  The  former  cannot  vote  where  they  are  person- 
ally interested  in  the  result.  They  are  trustees  for  the  stock- 
holders and  must  act  for  them  and  not  for  themselves.  They 
are  comparatively  few  in  number  and  expressly  intrusted  with 
the  management  of  the  corporate  affairs.  The  stockholders, 
on  the  other  hand,  may  be  very  numerous  and  run  up  into  the 
millions.  They  may  be  of  different  nationalities,  and  scattered 
over  the  face  of  the  earth.  "An  investigation,  therefore,  into 
their  various  personal  interests  would  not  only  be  difficult,  but 
almost  impossible,  and  great  uncertainty  would  result  if  the 
validity  of  acts  of  the  majority  were  made  to  depend  upon  such 
an  investigation."  It  has  therefore  been  held,  says  Mr.  Mor- 
awetz,  for  reasons  of  convenience  amounting  to  a  practical  ne- 
cessity, that  shareholders  in  a  corporation  are  not  disqualified 
from  voting  at  a  general  meeting  by  reason  of  their  individual 
interests  in  the  result  of  the  vote.  Morawetz  on  Corp. ,  §  477. 

Of  course,  however,  should  the  majority  attempt  to  appro- 
priate the  corporate  funds,  depart  from  the  company's  charter 
or  perpetrate  a  fraud,  the  courts  would  not  hesitate  to  interfere 
at  the  suit  of  any  aggrieved  stockholder.  Morawetz  on  Corp. , 
sec.  477;  96  N.  Y.,444;  35  Hun.,  355;  18  Ohio  St.,  169;  40 
Cal.,  20;  13  Am.  &  Eng.  R.  R.  Cas.,  94,  107;  104  U.  S., 
450-60;  110  U.  S.,  209;  Thompson  on  Corp.:  §4481. 

Who  may  VOte. — All  the  stockholders  of  a  corporation,  who 
rightfully  appear  as  such  upon  the  books  of  the  company,  and 
where  the  charter  or  amendments  thereto  allow  one  vote  for 
each  share,  have  an  equal  right,  in  proportion  to  the  number 
of  shares  owned  by  them,  to  vote  their  shares  ia  all  meetings 
of  stockholders,  both  general  and  special,  and,  to  a  like  extent, 
take  part  in  the  business  of  such  meetings.  This  is  so  even 
though  nothing  has  been  paid  in  on  their  subscription.  3  Zabr. 


GENERAL   POWERS   OF    THE    N.,    C.    A   ST.    L.    RY.  '_'! 

(N.  J.),  66;  6  Wend.,  509;  20  La.  Ann.,  489;  42  Conn.,  560; 
Rorer  on  Railroads,  p.  192. 

The  charter  of  the  Nashville,  Chattanooga  &  St.  Louis  Rail- 
way originally  provided  for  a  scale  of  voting,  but  by  acts  of 
Tenn.  1868-9,  ch.  2,  sec.  4,  it  was  amended  so  as  to  allow  one 
vote  for  each  share  of  stock.  The  amendment  was  accepted  by 
company  September  20,  1875,  and  held  legal  in  the  case  of 
Rogers  v.  N.,  C.  <&  St.  L.  Ry.  et  als.,  decided  November  9, 
1898,  by  the  United  States  circuit  court  of  appeals,  sitting  at 
Cincinnati,  but  not  yet  reported. 

Same.    Where  shares  are  held  by  two  or  more  persons 

jointly. — "The  general  rule  being  that  the  right  to  vote  fol- 
lows the  legal  title  to  the  shares,  it  follows  that,  where  the 
title  to  the  shares  is  vested  in  two  or  more  persons,  jointly, 
there  can  be  no  vote  cast  in  respect  to  them  without  the  con- 
currence of  all  the  joint  owners."  149  Pa.  St.,  70;  24  Atl. 
Rep.,  88;  Thompson  on  Corp.,  sec.  3871. 

Same.    Where  stock  pledged  or  mortgaged.—"  The  general 

rule  is,  as  stated  above,  that  the  right  to  vote  follows  the  legal 
title  and  this  rule  is  believed  to  obtain  in  all  cases  where  it  has 
not  been  changed  by  a  valid  statute,  by-law,  or  contract. 
Shares  may  be  transferred  for  the  purpose  of  securing  a  debt, 
but  under  a  form  of  conveyance  which  operates  to  pass  the 
legal  title  to  the  transferee,  and  to  give  him  the  right  to  have 
the  shares  registered  in  his  name  on  the  books  of  the  corpora- 
tion, in  which  case  the  right  to  vote  them  will  vest  in  him,  pro- 
vided he  has  the  transfer  made  on  the  books  of  the  corporation; 
otherwise,  the  pledger  or  mortgagor  would  be  entitled  to  vote, 
as  the  stock  would  appear  in  his  name.  The  inspector  of 
elections  should  look  alone  to  whose  name  appears  on  the  books 
in  determining  who  has  the  right  to  vote  the  shares.  If  other 
parties  claim  the  right  to  vote  the  shares  they  must  enforce  the 
right  in  a  court  of  equity."  Thompson  on  Corp.,  sees.  3872, 
732.  See,  also,  12  Pick.  (Tenn.),  253. 

Same.  Where  shares  held  by  surviving  partner.— "A  sur- 
viving partner  has  the  right,  while  the  partnership  business  re- 
mains unsettled,  to  vote  the  stock  standing  in  the  name  of  the 


922  STOCKHOLDERS,    ETC. 

firm,  or  which,  though  standing  in  the  name  of  the  deceased 
partner,  it  is  shown  actually  to  be  firm  property."  Thomp- 
son on  Corp.,  sec.  731;  16  Cal.,  113. 

Same.  Where  Owner  dead. — "  Where  the  owner  of  shares  in 
a  corporation  dies  without  leaving  a  will,  his  administrator  can 
vote  the  shares  upon  exhibiting  his  letters  of  administration, 
and  this,  too,  without  any  formal  transfer  of  the  shares  on  the 
books  of  the  corporation.  Where  he  leaves  a  will,  and  the 
legal  title  to  the  shares  is  vested  in  an  executor,  the  executor 
has  the  right  to  vote  them  on  exhibiting  an  exemplified  copy  of 
his  testamentary  letters.  If  vested  in  two  or  more  executors 
jointly,  however,  they  all  must  concur  or  no  vote  can  be  cast." 
Thompson  on  Corp.,  sees.  3871,  731. 

Same.    Where  shares  held  by  other  corporations.—  Where 

the  power  is  conceded,  either  by  statute  law  or  by  judicial  con- 
struction, to  exist  in  one  railway  corporation  to  hold  shares  in 
another,  the  right  to  vote  the  same  would  also  exist  as  an  inci- 
dent of  ownership.  But  in  the  absence  of  legislative  author- 
ity, it  is  against  public  policy  to  allow  one  corporation  to  pur- 
chase a  majority  of  the  shares  in  another  for  the  purpose  of 
absorbing  it,  controlling  it,  and  effecting  an  unlawful  consoli- 
dation with  it.  Thompson  on  Corp.,  sec.  3873;  88  Ala.,  630; 
S.  C.  16  Am.  St.  Rep.,  81;  7  South.  Rep.,  108;  50  Fed. 
Rep.,  338. 

Under  the  general  laws  of  the  state  of  Tennessee  it  is  pro- 
vided, however,  that  "any  railroad  company  created  by  and 
existing  under  the  laws  of  this  state,  and  for  any  lessees  of 
a  railroad  of  such  company,  from  time  to  time,  to  subscribe 
for  or  purchase  the  stock  and  bonds,  or  either,  of  any  other 
railroad  company  or  companies  chartered  by  or  of  which  the 
road  or  roads  is  or  are  authorized  to  extend  into  this  state, 
when  their  roads  shall  be  directly,  or  by  means  of  intervening 
railroads  connected  with  each  other.  Code  Tenn.  (M.  &  V.), 
§  1262;  (Shannon's)  §  1520.  See  also  discussion  of  this  subject 
under  general  heading  "Stockholders — right  to  vote." 

Same.    Where  shares  are  owned  by  corporation  itself.— 

' '  It  sometimes  happens  that  a  corporation  acquires  shares  of  its 


GENERAL    POWERS   OF   THE    X.,    C.    A   ST.    L.    RY.  923 

own  stock  from  defaulting  shareholders  by  forfeiture  or  by  sale 
to  foreclose  their  lien  upon  them,  but  stock  thus  owned  or  held 
by  the  corporation  cannot  be  voted  at  corporate  elections,  al- 
though it  may  be  held  by  a  trustee  in  pledge  to  secure  a  debt 
under  a  contract  which  allows  him  to  vote  it. "  37  Cal.,  15; 
5  Cow.  (N.  Y.),  426;  101  Mass.,  398;  92  Mo.,  635,  cited  by 
Thompson  on  Corp,,  £  734. 
Same.  Where  shares  are  held  by  receiver.— The  right  of 

a  receiver  of  stock  to  vote  it  is  not  questioned  by  any  author- 
ities, and  it  has  been  held  that  the  court  appointing  him  may 
direct  him  how  to  'vote  it.  Elliott  on  R.  R.,  sec.  158;  Cook 
on  Stock  and  Stockholders,  §612;  25  Abb.  N.  C.  (N.  Y.), 
274,  note. 

Same.    Where  shares  are  held  by  trustee.— "  If  the  stock 

is  registered  in  the  name  of  the  holder  as  trustee,  he  may  vote 
it,  unless  he  be  a  trustee  for  the  corporation  itself,  in  which 
case  the  officers  are  chargeable  with  notice  of  the  title  he  holds, 
and  his  holding  is  subject  to  the  rule  that  stock  owned  by  the 
corporation  itself  cannot  be  voted."  Elliott  on  R.  R.,  sec. 
158;  6  Wend.  (N.  Y.),  509;  5  Cow.  (N.  Y.),  426;  101  Mass., 
398;  37  Cal.,  15;  Thompson  on  Corp.,  sec.  731. 

If  he  holds  the  stock  as  trustee  the  company  should  not 
transfer  the  shares  for  him,  however,  without  requiring  him  to 
show  his  authority  to  sell  under  the  trust.  [See  "Capital 
Stock"  subhead,  "How  Transferred,"  pp.  670,  672,  herein]. 

Same.    Where  shares  are  in  name  of  partners.— Either 

partner  may  vote  the  shares  held  by  the  firm. 

Same.    Where  shares  in  name  of  "A.  B.,  Cashier."— 

"Stock  standing  on  the  corporate  books  in  the  name  of  A.  B., 
with  the  addition  of  "Cashier"  subjoined,  cannot  be  voted  on 
a  proxy  given  by  his  successor  in  office."  Thompson  on  Corp., 
§731;  19  Wend.  (N.  Y.),  135. 

Who  elected. — The  person,  or  persons,  receiving  a  majority  of 
the  votes  cast  is  duly  elected.  If  the  persons  receiving  the  ma- 
jority vote  are  incompetent  to  hold  the  office  of  directors,  in 
such  a  case  a  majority  vote  defeats  the  election  of  the  minority 
candidates,  if  cast  against  them,  although  such  vote  l>e  cast  for 


924  STOCKHOLDERS,    ETC. 

ineligible  persons,  and  therefore  has  no  affirmative  effect  to 
confer  the  office  on  those  voted  for.  It  is  the  majority  or  plu- 
rality of  votes  cast  for  a  party  that  elects  him,  and  not  the  in- 
competency  of  his  opponent.  Rorer  on  R.  R;,  p.  89;  Thomp- 
son on  Corp.,  sec.  781;  20  La.  An.,  489. 

When  the  president  fails  to  call  election,  or  old  officers  hold 

Over;  COStS. — It  is  provided  by  the  general  law  that  when  the 
board  or  president  and  directors  of  any  railroad  company  in- 
corporated by  the  laws  of  Tennessee,  or  any  other  officer  of  such 
company  whose  duty  or  power  it  may  be  by  the  terms  of  the 
charter  or  by-laws  of  said  company  to  call  the  meeting  of 
stockholders  thereof,  for  the  purpose  of  electing  a  board  of 
directors,  managers,  or  other  officers  of  such  company,  shall 
fail  to  make  such  call  in  the  time  and  manner  necessary  to 
have  such  election  at  regular  time;  or  if  any  such  board  of 
directors,  president,  or  other  officer  to  be  elected  by  the  stock- 
holders of  such  company,  or  any  portion  of  them,  shall  assume 
to  hold  or  exercise  their  office  as  such  beyond  the  regular  time 
for  which  they  were  elected,  then  it  shall  be  lawful  for  any  one 
or  more  of  the  stockholders  of  said  company  to  call  a  meeting 
of  the  stockholders  therein,  by  giving  notice  for  the  length  of 
time,  and  in  the  manner  prescribed  by  the  charter,  of  the 
object  and  place  of  such  called  meeting,  and  the  stockholders 
assembled  in  pursuance  of  such  call,  by  one  or  more  stock- 
holders, shall  be  competent,  upon  the  terms  hereinafter  pre- 
scribed, to  elect  a  board  of  directors,  managers,  or  other 
officers,  as  though  they  had  been  regularly  called  for  the  pur- 
pose by  the  officer  or  authority  whose  duty  or  power  it  was  so 
to  do.  In  all  meetings  herein  provided  for  there  shall  be  rep- 
resented, directly  or  by  proxy,  a  majority  of  all  the  stock  of 
the  company  which  had  been  subscribed  up  to  the  day  on  which 
the  regular  term  expired,  for  which  the  incumbent  overholding 
board  of  president  and  directors  were  elected.  All  costs  inci- 
dent to  the  calling  of  such  stockholders  shall  be  at  the  indi- 
vidual expense  of  the  party  or  parties  so  calling  and  not 
chargeable  to  the  company.  Code  Tenn.  (M.  &  V.),  §  1238; 
acts  Tenn.  1868-69,  ch.  27,  sec.  1;  [Shannon's  code,  §1491]. 


GENERAL  POWERS  OF  THE  N.,  C.  &  ST.  L.  RY.     996 

Two  or  more  calls;  place  and  time  of  meeting.— In  caw 

there  should  be  more  than  one  call  for  a  stockholders'  meeting, 
and  different  places  should  be  designated  for  such  meeting  in 
the  different  calls,  some  house  shall  be  selected  for  the  meeting 
in  the  town  or  place  where  the  principal  office  of  the  company 
is  established,  and,  if  such  office  is  nowhere  established,  then 
some  house  in  the  town  or  place  where  the  last  like  election 
was  held;  and  the  call  designating  the  earliest  period  for  the 
meeting,  allowed  by  the  requirements  of  the  company  charter 
as  to  notice,  shall  always  control  and  prevail  as  to  the  time  for 
such  meeting.  Code  Tenn.  (M.  &  V.),  §  1239;  acts  Tenn. 
1868-9,  ch.  27,  sec.  2  [Shannon's  code  Tenn.,  £  1492]. 

Stockholders  may  petition  judge  or  chancellor.— When  a 

meeting  of  stockholders  in  any  railroad  company  shall  be  called 
under  these  provisions,  any  one  or  more  of  the  stockholders 
making  such  call  may  apply,  either  in  open  court  or  at  cham- 
bers, to  the  judge  of  the  circuit  court  wherein  is  situated  the 
town  or  place  designated  for  such  stockholders'  meeting,  by 
petition  duly  sworn  to  and  setting  forth  all  material  facts;  and 
should  there  be,  for  the  time,  no  such  circuit  judge,  or  should 
he,  from  absence  or  other  cause,  be  unable  to  act,  then,  in  like 
manner,  to  the  chancellor  of  the  district  in  which  is  the  place 
designated  for  such  meeting,  and,  after  five  days'  notice,  by 
the  delivery  of  a  copy  of  the  petition  tiled  in  the  premises  to 
the  acting  president,  secretary,  or  treasurer  of  the  company,  or 
to  any  member  of  the  overholding  board.  If  the  material 
allegations  of  such  petition  be  not  directly  denied  by  answer  of 
such  overholding  board  of  president  and  directors,  duly  sworn 
to,  or  if  such  judge  or  chancellor  be  satisfied  of  the  fact  that 
such  directors  or  officers,  or  any  portion  of  them,  are  holding 
over  beyond  the  regular  term  for  which  they  were  elected,  or 
that  there  has  been  failure  to  give  the  required  notice,  under 
the  company's  charter,  for  the  stockholders1  meeting  to  elect 
their  successors  at  the  regular  time  therefor,  then  it  shall  IHJ 
the  duty  of  the  said  circuit  judge  or  chancellor,  conforming  to 
the  requirements  as  to  the  time  and  place  of  meeting  provided 
for  above,  upon  such  application  therefor,  to  ap)x>int,  by  order 


926  STOCKHOLDERS,    ETC. 

in  writing,  three  competent  judges  to  hold  such  stockholders' 
election,  and  cause  them  to  be  duly  sworn  to  hold  the  same 
faithfully,  impartially,  and  in  accordance  with  law,  at  the  time 
and  place  designated  in  their  appointment.  Code  Tenn.  (M.  & 
V.),  §  1240;  acts  Tenn.  1868-9,  ch.  27,  sec.  3  [Shannon's 
code  Tenn.,  §  1493]. 

Order  tO  be  recorded. — The  order  of  such  judge  or  chancel- 
lor, together  with  the  oath  as  taken  by  such  election  judges, 
shall  be  entered  by  the  clerk  upon  the  minute  book  of  this 
court  as  an  order  of  the  court,  in  term  or  at  chambers,  as  the 
case  may  be,  and  such  entry  shall  be  evidence  on  trial  of  all 
causes  in  this  state  as  other  records  of  the  same  court.  Code 
Tenn.  (M.  &  V.),  §  1241;  [Shannon's  code,  §  1494]. 

Election;  hOW  Conducted. — The  election  shall  be  held  at  the 
time  and  place  designated  by  the  appointing  judge  or  chancel- 
lor, and  he  shall  also  appoint,  with  such  election,  judges  and 
clerks  or  other  assistants  he  may  deem  necessary  for  properly 
holding  or  reporting  such  election.  Code  Tenn.  (M.  &  V.), 
§1242;  [Shannon's  code,  §1495]. 

Oaths. — The  clerks  or  other  assistants  so  appointed  shall  be 
duly  sworn  to  faithfully  perform  the  duties  as  such;  and  the 
judge  or  chancellor  shall,  upon  motion,  make  all  necessary 
orders  upon  the  acting  secretary  or  other  officer  in  charge  of 
the  books  or  stock  subscriptions  of  such  company,  to  file  with 
the  clerk  of  his  court  a  true  and  correct  list  of  all  stockholders 
in  the  company,  the  number  of  shares  owned  by  each,  whether 
subscribed  or  transferred,  and  the  respective  dates  of  such  sub- 
scription or  transfer,  which  list  shall  be  for  the  information  of 
the  judges  of  election  in  holding  the  same.  Code  Tenn.  [M.  & 
V.),  §1243;  [Shannon's  code,  §1496]. 

Election,  how  held;  record  of  meeting.— The  election  shall 

be  held  by  the  judges  herein  provided  for,  in  the  method  and  on 
the  terms  prescribed  for  like  elections  by  the  charter  of  the 
company,  and  if  no  method  be  so  prescribed,  then  the  election 
shall  be  by  ballot,  and  the  judges  thereof  shall  make  out  an 
accurate  list  of  all  stockholders  voting  in  such  election,  either 
directly  or  by  proxy,  and  of  all  votes  rejected  by  them,  to- 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.     L.    RV.  927 

gether  with  a  correct  statement  of  the  results  of  such  election, 
which  list  and  statement  of  results  shall  l»e  certified  by  the  elec- 
tion judges  to  the  clerk  of  the  court,  held  l>y  the  judge  or  chan- 
cellor appointing  them,  and  entered  upon  the  minute  l»ook  of 
his  court  for  ins|>ection  by  any  stockholder.  Code  Tenn.  <  M. 
&  V.),  §  1244;  acts  Tenn.,  1868-69,  ch.  27,  sec.  4;  [Shannon's 
code,  §1497]. 

Compensation  of  clerk;  transcript  is  evidence.— The  clerk 

shall  receive  for  such  entry  the  compensation  established  by 
law  for  copying  record  matter.  Attested  transcript  of  such 
entry  shall  be  evidence  in  all  courts  of  this  state,  as  the  duly 
taken  depositions  of  such  election  judges,  but  shall  not  be  of 
the  conclusive  nature  of  other  records  of  such  court.  Code 
Tenn.  (M.  &  V.),  §  1245;  [Shannon's  code,  §  1498]. 

Certificates  of  election  and  qualification  of  officers-elect.— 

The  judges  of  the  election  shall  issue  certificates  of  election  to  the 
persons  receiving  the  greatest  number  of  votes  cast,  or  the 
number  required  by  the  terms  of  the  company's  charter,  as 
the  case  may  be,  and  such  certificate  shall  entitle  the  persons  so 
certified  as  elected  to  immediately  qualify  as  directors,  man- 
agers or  other  officers  accordingly  as  they  were  elected,  and 
they  shall  be  and  continue  such  directors,  managers,  or  officers 
of  the  company  for  which  they  may  be  elected  for  the  period 
of  time  prescribed  by  such  company's  charter,  reckoning  the 
time  from  the  day  of  their  election,  with  all  the  rights  and 
powers  in  full  permitted  by  the  charter  of  the  company,  and 
the  privilege  of  enforcing  such  rights  and  powers  in  any  man- 
ner allowed  by  the  laws  of  this  state.  Code  Tenn.  (M.  &  V.), 
§  1246;  [Shannon's  code,  £  1499]. 

May  take  charge  of  all  papers,  books,  etc.;  refusal  to  sur- 
render same;  proceedings  against  overholding  board.— Any 

directors,  managers,  or  officers  elected  hereunder  may,  upon 
their  organization  as  required  by  their  company  charter,  de- 
mand and  receive  of  the  overholding  board  of  the  president 
and  directors  or  managers,  and  of  any  jwrson  whomsoever,  all 
books,  papers,  property,  and  effects  U'longing  to  the  company, 
and  pro|)er  to  l>e  possessed  and  controlled  by  the  board  of  pres- 


928 

ident  and  directors,  managers,  or  other  officers,  upon  such  de- 
mand and  production  of  their  certificates  of  election;  if  any 
person  whomsoever,  having  possession  thereof,  shall  refuse  to 
deliver  to  the  parties  so  demanding  all  such  books,  papers, 
property,  and  effects,  then  the  parties  so  elected  may  file  their 
petition,  duly  sworn  to,  setting  forth  such  demand  and  refusal 
and  other  material  facts,  making  the  proper  parties  defendants, 
and  praying  for  the  necessary  relief  in  the  circuit  court  for  the 
county,  or  chancery  court  of  the  district,  wherein  their  elec- 
tion was  made.  Code,  Tenn.  (M.  &  V.),  §  1247;  acts  Tenn., 
1868-9,  ch.  27,  sec.  5;  [Shannon's  code,  §  1500]. 

Petition  and  proceedings  thereon.— Upon  the  filing  of  such 

petition,  if  therein  prayed  for,  or  at  any  time  thereafter,  upon 
the  motion  of  the  petitioners,  either  in  open  court  or  at  cham- 
bers and  five  days1  notice  to  defendant,  the  judge  or  chancellor 
of  the  court  in  which  the  same  may  be  filed  shall,  upon  peti- 
tioners entering  into  bond  with  security  for  the  proper  in- 
demnity of  defendants,  in  the  amount  and  condition  directed  in 
his  sound  discretion,  cause  to  be  issued  and  properly  directed 
all  writs,  used  by  either,  or  both,  of  such  circuit  or  chancery 
courts,  whether  such  writs  be  in  the  nature  of  writs  of  attach- 
ment, writs  of  replevin,  writs  of  possession,  or  injunction,  or 
of  any  other  character  which  may  be  essential  to  right  and 
justice  in  the  premises;  and  to  this  end  all  necessary  power  and 
jurisdiction  is  hereby  conferred  upon  such  courts.  Such  courts 
may  also  appoint  receivers.  Code  Tenn.  (M.  &  V.),  §  1248; 
[Shannon's  code,  §  1502]. 

Proceedings  according  to  course  of  chancery  court.— Copy 

of  petition,  with  subpoena  to  answer,  shall  be  served  upon  the 
defendants,  and  the  cause,  excepting  so  far  as  differently  pro- 
videded  for  herein,  be  carried  on  in  due  course,  as  required  by 
the  rules  of  practice  governing  other  suits  of  an  equitable 
nature  in  the  court  to  which  the  same  may  be  brought.  Code 
Tenn.  (M.  &  V.),  §1249;  see,  also,  9  Bax.,  522;  [Shannon's 
code,  §  1503]. 

Stockholder's  right  to  inspect  books.— "A  stockholder  is 

entitled  to  inspect  the  corporate  books  at  reasonable  intervals 


GENERAL    POWERS   OF   THE    N.,    C.    A    ST.    L.    BY.  929 

and  times,  either  in  person  or  by  an  expert  or  an  agent,  when 
be  is  too  ignorant  to  do  it  himself  intelligently.  The  directors 
cannot  exclude  a  member  from  this  right  because  his  motives 
are  hostile  to  the  interests  of  the  corporation,  and  he  may 
enforce  the  right  by  mandamus/'  Elliott  on  Railroads,  sec. 
172,  citing  8  Bax.  (Tenn.),  108;  53  Mo.  App.,  542;  113  Pa. 
St.,  563;  33  N.  Y.  Supp.,  244;  29  Mo.  App.,  326;  50  Barb. 
(N.  Y.),  280;  105  Pa.  St.,  Ill;  86  Ala.,  467. 


59 


THE    END. 


INDEX. 


ABANDONMENT. 

Right  of  company  to  abandon  its  right  of  way,  697,  696. 

As  ground  for  forfeiture  of  charter,  considered,  697. 

May  abandon  depots,  stations,  etc.,  when,  914. 

Right  to  remove  rails,  bridges,  etc.,  when,  410  (note  1). 

Right  to  abandon  part  or  whole  of  right  of  way,  411  (note  3). 

May  change  general  ruute  in  Georgia,  when,  887. 

May  change  either  terminus  in  Tennessee,  when,  887. 

As  to  changing  line  so  as  to  side  track  town,  96  Ga.,  385. 

As  to  right  to  change  location  in  Kentucky,  see  §  768  of  Code,  1894. 

ACCEPT  BILLS,  NOTES.  ETC. 

Power  of  N.  C.,  &  St   L.  Ry.  to,  627. 

ACKNOWLEDGMENT. 

Form  of  in  Tennessee,  628. 
Form  of  in  Alabama,  628,  308. 
Form  of  in  Georgia,  396-7. 
Form  of  in  Kentucky,  628,  532. 

AGREEMENTS. 

(See  also  "Contracts.") 
Charter  provisions  83  to,  8. 
Binding  without  seal,  when,  628. 
Deeds  must  have  seal  attached,  however,  629. 

ALABAMA  GREAT  SOUTHERN   RAILROAD  COMPANY. 

Lease  from  N.  C.,  &  St.  L.  Ry.  of  joint  use  of  track  between  Wau- 
hatchie  and  Chattanooga,  550. 
Consideration,  550. 
Part  of  road  leased.  550. 
Duration  of  lease,  550,  552. 
Conditions,  550-551. 

Employes  to  be  under  whose  instructions,  552. 
Road  to  be  kept  up  by  whom,  552. 
Traffic  facilities — block  system  provided  for,  552. 

(931) 


932  INDEX. 

ALLEN'S  CREEK  BRANCH. 

How  acquired  by  N.  C.,  &  St.  L.  Ry.,  228  (note  2). 

Deed  to,  245. 

Where  registered,  228  (note  2). 

Width  of  right  of  way,  246. 

Map  of,  see  map  in  front  of  book. 

Mortgage  on.     (See  "Mortgages.") 

ALTER  GAUGE. 

In  Tennessee,  power  to,  629. 

BON  AIR  RAILWAY.    (Extension  of  McMinnville  Branch.) 
How  acquired  by  N.  C.,  &  St.  L.  Ry.,  199. 
Legality  of  purchase  of,  199  (note). 
Deed  to,  211. 

Where  registered,  213  (note). 
What  franchises,  etc..  passed  under  sale,  199. 
Width  of  right  of  way,  199. 
Distance  built  when  purchased,  200  (note). 
Original  charter  of  (annotated),  200. 

General  powers,  200,  201. 

Special  provisions,  201. 

Express  and  implied  powers,  202. 

Charter  may  be  repealed  or  amended,  203. 

Right  of  way,  how  condemned,  203. 
May  condemn  200  feet,  203. 
Land  may  be  taken,  how,  204. 
Statute  of  limitations  as  against  damages  for,  208. 

Transportation  charges,  208. 

Tracks  not  to  obstruct  roads,  streets  and  highways,  208. 

Crossings,  sign-beards,  209. 

Regulations  for  running  trains,  209. 

Prohibited  contracts,  209. 

Freight  from  other  roads  must  be  received,  209. 

Where  charter  registered,  211  (note). 
Map  of,  see  map  in  front  of  book. 
Mortgage  on.     (See  "Mortgages.") 

BONDS.     (See  also  "Mortgages.") 
In  Tennessee. 

When  and  how  bonds  may  be  issued  and  subscribed  for,  630. 
Power  to  issue  by  statute,  630  et  seq.,  633. 

To  issue  income  and  debenture  bonds,  631. 

To  issue  for  acquired  lines,  631. 

How  done  under  consolidated  mortgage,  615,  612. 


INDEX.  1*33 


To  guarantee  bonds  of  line  acquired,  631. 
To  guarantee  bonds  of  other  roads,  632. 
To  guarantee  bonds  of  terminal  companies,  632  (note). 
To  subscribe  for  bonds  in  other  roads,  632. 
To  sell  bonds  at  discount,  633. 
To  pledge  it:;  own  bonds,  633. 
Bond  dividends,  p  633. 
Coupons,  negotiable,  633. 

Interest  runs  on,  when,  633. 
When  barred,  633. 

Share  pro  rata  in  mortgage  foreclosure,  exceptions,  634. 
Under  consolidated  mortgage,  G08. 
Rate  of  interest  on  bonds,  635. 
On  consolidated  bonds,  606. 

Counties,  towns,  etc.,  may  subscribe  for,  in  railroad,  how,  635. 
In  Alabama,  may  guarantee  bonds  of  other  roads,  when,  847. 
In  Georgia,  632. 
In  Kentucky,  632. 

BORROW  MONEY. 

Power  of  N.  C.,  &  St.  L.  Ry.  to  borrow  money,  630. 

BRANCH  ROADS. 

Definition  of,  636. 

Power  of  this  company  to  construct,  636. 

In  Tennessee,  may  build  branch  roads,  when,  636-7-8. 

What  charters  may  be  amended  so  as  to  authorize  branch 
roads,  638. 

Power  of  others  to  construct  branch  roads  to  connect  with 
this,  833. 

Power  to  build  branch  roads  to  unite  with  other  rail- 
ways, G39. 

Power  to  builu  side  tracks  and  spur,  641. 

Power  to  build  branch  road  from  Huntingdon  to  certain 
railroads,  9S  (note  2). 

In  Alabama,  branches  may  be  built  or  lines  extended,  639. 
Mode  of  making,  purchasing  or  extending.  639. 
Supreme  court  decision  on  subject,  642. 
Power  to  build  side  and  spur  tracks,  641. 

In  Georgia,  branches  and  extensions  may  be  built,  640. 
Power  to  build  side  and  spur  tracks,  641. 

In  Kentucky,  branches  may  be  built,  how,  641. 

May  build  switches,  side  and  spur  tracks,  641. 


934  INDEX. 

BRIDGES. 

Power  of  N.  0.,  &  St.  I,.  Ry.  to  build  and  repair,  642. 
Charter  provisions  on  subject,  642. 
Main  branch  authorized  to  build,  642. 

Bridge  at  Bridgeport,  how  authorized  and  built,  643. 

Bridges  authorized  to  be  purchased,  642. 
Northwestern  Branch  authorized  to  build  or  purchase,  643. 

Bridge  at  Johnsonville.  how  authorized,  643. 
Right  of  company  to  temporarily  obstruct  water  course  in  erecting 

and  repairing,  643. 
(For  bridges  on  other  branches,  see  their  charters). 

BY-LAWS. 

By  whom  to  be  enacted,  644. 

What  by-laws  are  legal,  645. 

How  enacted  or  amended,  645. 

Do  not  affect  strangers,  when.     17  Pick.,  354. 

How  differ  from  rules  and  regulations,  903. 

Present  by-laws  of  company,  646  et  seq. 

CAPITAL  STOCK.     (See  also  "Stockholders,"  "Directors.") 

Original  amount  of,  2. 

Present  amount  of,  4  (note),  667. 

Original  value  of  shares,  2. 

Present  value  ot  shares  and  how  increased,  3  (note  1),  665,  669. 

How  original  stock  subscribed,  and  by  whom,  4. 

Special  acts  authorizing  increase  of  capital,  665. 

How  increased  and  to  be  increased,  665. 

Who  to  vote  on,  668. 

What  vote  necessary,  668. 

At  what  meeting  to  be  authorized,  668. 

Stock  so  increased  may  be  sold  at  discount,  668. 

Preferred  stock,  how  issued,  669. 

Guaranteed  stoclr.  how  issued,  669. 

Stock  dividends,  669. 

Shares,  how  to  be  transferred,  670. 

Lost  certificate,  how  supplied,  670. 

By-law  on  subject,  648. 

Liability  of  company  in  regard  to  transfers,  671. 
Duty  of  company  to  investigate  before  transferring  in  certain  cases 
and  liability  for  failure,  672. 

Where  shares  in  name  of  trustee,  who  to  assign,  672. 

Where  held  in  trust  generally,  672. 

Where  stock  assigned  by  other  than  one  to  whom  issued,  673. 

Where  assigned  by  administrator,  673. 


INDEX. 

CAPITAL  STOCK— ConHn tied. 

Where  assignment  it,  forged,  or  by  void  decree,  673. 

Where  shares  in  name  of  partners,  C73. 

Where  shares  in  name  of  infant,  674. 
Who  may  vote  stock,  919,  920. 

Qualification  of  stockholders  to  vote  at  elections,  919. 

Not  disqualified  because  interested  in  subject-matter,  920. 

Where  shares  are  held  by  two  or  more  persons  jointly,  who 
to  vote,  921. 

Where  stock  pledged  or  mortgaged,  who  to  vote,  921. 

Where  shares  held  by  surviving  partner,  who  to  vote,  921. 

Where  owner  dead,  who  may  vote,  922. 

Where  shares  held  by  other  corporations,  922. 

Where  shares  are  owned  by  company  itself,  922. 

Where  shares  held  by  receiver,  923. 

Where  held  by  trustee,  923. 

Where  shares  in  name  of  partners,  923. 

Where  in  name  of  "A.  B.  Cashier,"  923. 
Stock  in  other  companies  may  be  subscribed  for,  674. 

In  Tennessee,  674. 

In  Alabama,  674,  889. 

In  Georgia,  675. 

In  Kentucky,  676. 

Reduction  of  capital  stock,  power  to,  676. 
Entire  capital  stock  may  be  owned  by  one  person,  676. 
Stock  exempt  from  taxation,  69S,  23. 

Stock  personal  property  and  subject  to  levy  and  sale,  676. 
Passes  by  transfer  of  certificate,  677. 
Counties  and  cities  may  subscribe  for  in  railroads,  when,  677. 

CATTLE  GUARDS. 

(See  "Stock  Gaps.") 

CENTERVILLE  BRANCH. 

(See  "Nashville  &  Tuscaloosa  Railroad.") 

CHARTER. 

(See  index,  generally,  for  charter  desired,  under  name  of  branch.) 
When  charter  of  N  .  C.  &  St.  L.  Railway  granted,  and  status  before 

the  law.  677. 
How  amended,  G78. 

Legislature  cannot  force  amendments  upon  it,  678. 
Amendments  accepted  and  adopted  are  valid  though  not  petitioned 

for,  679. 
Legislature  may  pass  amendments  and    enabling    acts    enlarging 

powers,  when,  679. 


936  INDEX. 

CHARTER— Continued. 

Such  amendments  and  enabling  acts,  however,  not  protected  as 

contracts,  and  can  be  repealed,  680. 

What  are  the  present  franchises  of  N.,  C.  &  St.  L.  Railway,  681. 
What  is  a  franchise,  682. 
Different  kinds  of,  683. 
How  alienated,  683. 

May  alienate  secondary  franchise  by  statute  in  Tennessee,  684. 
May  purchase  franchises  of  other  companies,  686. 
At  judicial  sales,  686  et  seq. 
Purchasers  may  reorganize,  687. 
Exemptions  from  taxation  do  not  pass,  687. 
By  purchase,  688. 
As  to  completing  and  operating  an  unfinished  purchased  road, 

885. 

Nonuser  of  franchise  no  forfeiture  of,  688. 
Portions  of  franchise  not  vendible,  688. 
Property  necessary  to  the  exercise  of  the  franchise  not  vendible, 

when,  689. 

Franchises  in  .charter  of  N.,  C.  &  St.  L.  Railway  protected  as  con- 
tract, 689. 

Franchise  to  be  a  corporation,  protected,  689. 
Franchise  to  buy  and  sell  real  and  personal  estate  protected, 

689. 
To  contract,  sue  and  be  sued,  make  by-laws,  etc.,  protected, 

689. 
To  operate  its  railroad  between  its  termini,  to  the  exclusion 

of  all  others  within  20  miles  of  route,  protected,  690. 
Exemption  from  compulsory  amendments  to  charter  protected, 

691. 

Exclusive  right  of  transportation  over  road,  691. 
Power  to  condemn  property  protected,  691. 
Operating  warehouses  for  pay,  protected,  692. 
Exemption  from  taxation  of  capital  stock  protected,  693. 
Implied  rights,  though  not  expressed  in  charter,  protected,  693. 
Exemption  of  employes  from  road,  military,  and  jury  duty  not 

protected,  693. 
Exemption  from  legislative  control  as  to  freight  charges  not 

protected,  693. 
Forfeiture  of  charter,  grounds  of,  695. 

Abandonment  of  right  of  way  as  grounds  for,  697. 
Abandonment  of  depots  and  stations  without,  914. 

CHATTANOOGA  TERMINAL  RAILWAY. 

How  acquired,  448. 

Legality  of  lease,  448  (note  1). 


INDEX.  937 

CHATTANOOGA  TERMINAL  RAILWAY— Continual. 

Buffalo  Iron  Company  extension,  448  (note  2). 

Distance  road  built  when  leased,  449. 

Width  of  right  of  way,  449. 

Lease  contract,  451. 

Where  registered,  454  (note). 

Original  charter  of  (annotated),  449. 

Where  charter  registered,  450. 

General  powers,  449. 

CITIES. 

Power  to  condemn  railro.od  property,  for  streets,  alleys,  etc.,  760. 
Power  to  condemn  crossings,  760. 

COLUMBIA  BRANCH. 

(See  Duck  River  Valley  Narrow-Gauge  Railroad.) 

CONNECTIONS. 

In  Tennessee. 

Power  of  this  company  to  connect  with  other  roads,  699. 

Power  of  other  roads  to  connect  with  it,  699. 

Condemnation  for,  700. 
In  Alabama,  700. 
In  Georgia,  705. 
In  Kentucky,  701. 

CONSOLIDATIONS. 

In  Tennessee. 

Power  of  this  company  to  consolidate  with  other  roads,  terms 

and  conditions,  702. 
Agreement  to  be  in  writing,  702. 
Approval  of  stockholders,  702. 
Must  first  pay  debt  due  state,  if  any,  702. 
Agreement  to  be  recorded  where,  702. 
Rights  of  creditors,  703. 
Powers  of  old  companies  go  to  new,  703. 
What  powers,  703. 

Exemptions  from  taxation  not  to  pass,  704. 
Consolidation  of  railways  chartered  under  general  laws,  704. 
Majority  of  stockholders  must  approve.  704. 
Roads  must  not  compete  or  be  parallel,  704. 
What  roada  may  consolidate,  705. 
In  Alabama,  705. 
In  Georgia,  705. 
In  Kentucky,  706. 


938  INDEX. 

CONTRACTS. 

Charter  provision  on  subject,  706. 

Contracts  not  to  exceed  what,  706. 

Binding  without  seal,  707. 

Void  if  beyond  scope  of  power,  707. 

How  corporate  name  signed  to,  707.  * 

May  contract  with  other  railroad  companies  for  use  of  property 
and  franchises  or  any  part  thereof,  708. 

May  contract  for  lease  and  conditional  sale  of  rolling  stock,  equip- 
ments, etc.',  70'J. 

Acknowledgments  of  contracts,  709. 

CORPORATE  NAME. 

How  changed,  709. 

How  change  can  be  made  now,  709. 

Who  to  sign  corporate  name  and  how,  706. 

COUNTIES. 

Power  to  condemn  crossings  of  railway,  760. 

CROSSINGS. 

In  Tennessee. 

Power  of  N.  C.,  &  St  L.  Ry.  to  cross  roads,  water  courses,  etc., 
710. 

As  to  "branches/   see  their  respective  charters  in  index. 
How  private  and  public  crossings  to  be  made,  711. 
Power  of  other  railroads  to  cross  this,  712. 

'Railroads  must  erect  and  maintain  crossings  at  public  high- 
ways, 712. 

Punishment  for  failure,  712. 

Must  grade  and  keep  in  repair  crossings,  how,  712a. 
Penalty  for  failure,  712a. 

As  to  enlarging  bridges  or  crossings  considered,  712a. 
Where  railway  fails  to  erect  and  keep  in  repair,  712a. 
Does  not  apply  to  turnpike  crossings,  712a. 
Private  crossings,  712b. 

Gates  and  fences  at,  712b. 

Stock  gaps  at  private  crossings,  712c. 
Siock  gaps  or  cattle  guards  on  unfenced  tracks,  712c. 
Applies  to  fields  hereafter  opened,  712c. 
Liable  for  all  damages  for  failure,  712c. 

Power  of  cities  and  counties  to  condemn  crossings  over  rail- 
road, 712d. 

When  general  statutes  authorize  such  crossings,  712d. 

How  counties  must  proceed,  if  at  all,  713. 


INDEX.  939 

CROSSINGS— Continued. 

Notice  to  interested  parties,  who  are,  713. 
Notice  when  landowners  are  nonresidents,  713. 
Jury  of  view  in  one  district,  713. 
Damages,  how  paid,  714. 
Appeals.  714. 

Special  act  us  to  crossing  in  Nashville,  34  and  note. 
In  Alabama. 

Alabama  grants  \'.,  C.  &  St.  L.  Ry.  powers  of  Tennessee  char- 
ter, 714. 

Power  of  railroads  to  cross  each  other,  714,  783. 
As  to  crossing  navigable  streams,  public  roads,  etc.,  715. 
Cities  and  counties  may  cross  railroads,  how,  715. 
Stock  gaps  and  cattle  guards,  716. 
In  Georgia. 

Georgia  grants  N.,  C.  &  St.  L.  Ry.  certain  franchises,  716. 
Power  of  railroads  to  cross  each  other,  terms,  716. 
Crossings-,  how  and  by  whom  kept  up,  716. 
Cities  and  countios,  rights  of  to  cross   railroads  "With   roads 

and  streets,  717. 

As  to  Western  &  Atlantic  Railroad,  717. 
Stock  gaps  and  cattle  guards,  717. 
Liability  for  failure,  718. 
Additional  cattle  guards  required,  when,  718. 
Does  not  affect  existing  laws,  719. 
In  Kentucky. 

Power  of  railroads  tc  cross  each  other,  719. 

Power  to  cross  highways,  water  courses,  streets,   railroads, 

etc.,  719. 

Stock  gaps  and  cattle  guards,  where  to  be  erected,  720. 
Cities  and  counties,  power  of  to  open  roads,  streets,  etc.,  across 
railroads,  720. 

DEMURRAGE. 

(See  "Freight  Charges.") 
When  it  may  be  charged  in  Tennessee,  721. 
In  Georgia,  826  (note  4). 
In  Kentucky,  828. 

DEPOTS. 

Power  to  abandon,  tear  down  or  remove,  914. 

In  Alabama,  914. 

In  Georgia,  inoperative,  when,  914. 

In  Kentucky,  inoperative,  when,  914. 

Rules  and  regulations  concerning,  899. 

Union  depot  at  Nashville,  589. 

May  keep  hotel,  restaurant  and  news  stand  at.  564. 


940  INDEX. 

DIRECTORS. 

How  elected,  721. 

Vote  to  be  taken  how,  722  (note.) 

By-law  on  subject,  647. 
Qualifications  of,  724. 
Effect  of  disqualifications  of,  726. 
Number  of,  724. 
When  elected,  722. 
Vacancies  in  board,  how  filled,  723. 

By-law  on  subject,  647. 
President  pro  tern.,  how  elected,  723. 

Meetings  of. 

President  to  preside  at,  723. 

By-law  on  subject,  649. 
Regular,  when  held,  724. 

Notice  of,  what  must  be  given  and  kind,  727,  728. 

Notice  of  adjourned  meetings,  728. 
Special,  when  to  be  held,  725. 

Manner  of  assembling,  727. 

Notice  of,  727,  728. 
Quorum,  what  constitutes,  725. 

In  case  of  unfilled  vacancies,  726. 

Majority  of  assembled  quorum  may  act,  726. 

Effect  of  disqualification  of  member  of  quorum,  726. 
Without  quorum,  acts  at  voidable,  725. 
Directors  must  act  together  as  a  board,  725. 
Individual  acts  may  be  ratified  by  quorum,  725. 
May  be  held  out  of  state,  728. 
Voting,  cannot  be  by  proxy,  728. 

By-law  on  subject,  646. 

Directors  not  exempt  from  military,  road,  and  jury  duty,  728. 
Duties  of  directors,  729. 

Powers  of. 

May  pass  by-laws,  rules,  and  regulations,  730. 
May  fill  vacancies  in  board,  730. 
May  mortgage  property,  when,  730. 
Call  general  meetings  of  stockholders,  when,  730. 
Declare  dividends,  730. 

Elect  president,  permanent  and  pro  tern.,  731. 
Manage  the  affairs  of  company,  731. 
Allow  lateral  roads  to  be  built  in  20  miles  of  this,  731. 
To  act  as  trustees  in  case  of  dissolution,  731. 
May  borrow  money,  731. 

Appoint  judges  and  clerks  of  stockholders'  election  of  direc- 
tors, 732. 


INDEX.  941 

DIRECTORS— Contin  tied. 

Make  and  transfer  negotiable  paper,  732. 
Petition  for  amendment  to  charter,  732. 

Implied  powers,  732 

• 

DISSOLUTION. 

Directors  to  be  trustees  in  case  of,  733. 

How  company  may  be  dissolved,  b95. 

May  exist  after  forfeiture  or  dissolution,  for  five  years,  for  certain 

purposes,  733. 
What  acts  do  not  work  dissolution,  734. 

Failure  to  elect  directors  does  not,  734. 
Nor  nonuser  of  franchise,  734. 
Generally,  734." 

May  tear  down  or  remove  stations,  without,  when,  914. 
In  case  of  dissolution  company  may  remove    rails,    bridges,    etc., 
from  right  of  way,  410  (note  1). 

DIVIDENDS. 

When  to  be  paid,  734. 

Charter  provision  on  subject,  20. 

Misdemeanor  to  pay,  when,  735. 

Stock  dividends,  735. 

Bonds  in  lieu  of  cash  dividends,  735. 

To  whom  dividends  paid,  735. 

Guaranteed  dividends,  736. 

Dividends  wrongfully  paid,  736. 

DUCK  RIVER  PHOSPHATE  MINES  BRANCH. 
(See  "Swan  Creek  Branch.") 

DUCK    RIVER    VALLEY    NARROW    GAUGE    RAILROAD    (Columbia 
Branch.) 

How  acquired  by  N.,  C.  &  St  L.  Ry.,  250. 

Deed  to,  258. 

Where  registered,  263  (note). 

Legality  of  purchase,  251  (note). 

What  franchises,  etc.,  passed  under  sale,  251. 

Width  of  right  of  way.  251. 

Distance  built  when  purchased,  253. 

Where  incorporated,  253. 

Termini,  253. 

Original  charter  of  (annotated),  254. 

Map  of.  see  map  in  front  of  book. 

Mortgages  on.    (See  "Mortgages.") 


94:2  INDEX. 

EAST  TENNESSEE,  VIRGINIA  &  GEORGIA  RAILWAY  CO. 

Lease  of  joint  use  of  tracks  at  Dalton,  Ga.,  of  W.  &  A.  R.  R.,  548. 
Description  of  leased  premises,  548. 
Duration  of  lease.  548. 
Consideration,  549. 

Track  to  be  kept  in  order  by  whom,  549. 
Who  to  be  liable  for  accidents  or  damages,  549. 
Arbitration  provided  for,  54t». 
Southern  Railway  Co.  now  owns  E.  T.,  V.  &  Ga.  Ry.  Co.,  549. 

EMINENT  DOMAIN. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  condemn  under  its  charter,  736. 

(For  powei  to  condemn  on  various  branches,  refer  to  partic- 
ular branch  in  index). 

Character  of  title  acquired,  a  fee,  if  condemnation  had  and  paid 
for,  737  (note). 

To  what  branches  does  this  apply,  738  (note  2). 
Approaches  to  road  for  certain  purposes  may  be  condemned,  737, 

17  (note  2). 
Land  for  workshops,  storehouses,  materials,  and  houses  for  agents* 

cannot  be,  738. 

How  condemnation  made  now,  750. 

In  absence  of  contract  or  condemnation  right  of  way  200  feet,  738. 
This  section  valid,  and  landowner's  possession  not  adverse, 

when,  739. 
Railway  may  take  when  necessary  for  railroad  purposes,  739. 

To  what  branches  does  this  apply,  740  (note  2). 
Necessity  for  taking,  who  to  determine,  740. 
Effect  where  substantial  house  erected  within  200  foot  right 

of  way,  741. 

Nature  of  railway's  ownership  of  right  of  way,  742. 
Right  to  trees,  herbage,  gravel,  etc.,  on  right  of  way,  744. 
What  damage  to  adjoining  landowner  included  in  condemning  right 

of  way,  745. 

Overflow  for  20  years,  gives  right  to,  745. 
Successive  appropriations,  745. 

Power  to  take  land  for  right  of  way,  side  tracks,  depots,    ap- 
proaches, etc.,  not  exhausted,  745. 
To  what  branches  does  this  apply,  749  (note). 
May  condemn  land  to    broaden    right  of   way,  for    additional 
tracks,  side  tracks,  etc.,  even  in  face  of  contract  not  to  do 
so,  750. 
May  condemn  lands  for  lateral  roads  not  exceeding  eight  miles, 

when,  752. 

May  condemn  land  for  lateral  and  branch  roads  fifteen  miles    in 
length,  when,  752. 


INDEX. 

EMINENT  DOMAIN— Continued. 

The  above  power  does  not   authorize   consolidation  or  exemption 

from  tax,  753. 
Where  lateral  road  to  extend  from    purchased    branch,  in   whose 

name  to  condemn,  753. 
Where  lateral  road  to  extend  from  leased  road,  who  to  condemn, 

754. 

May  build  branch  roads  to  connect  with  other  railroads  and   con- 
demn land  therefor,  754. 

Power  of,  to  condemn  or  appropriate  county  road  or  highway,  755. 
Power  of  other  roacia  to  condemn  right  of  way,  depot  facilities, 
yards,  etc.,  of  this.  756. 

Can  future  legislatures  change  this,  so  as  to  authorize  it?  759. 
Power  of  cities  to  condemn  railroad  property  for  streets,  etc.,  760. 
Power  of  cities  and  counties  to  construct  crossings  of,  760. 
Power  of  railroads  to  condemn  crossings  of  others,  761. 
Power  of  telephone  and  telegraph  companies  to  condemn  right  of 
way  over  railroads,  bridges,  etc.,  762. 
Not  to  obstruct  railroad,  762. 
How  condemnation  made  by,  763. 
Only  nominal  damages,  when,  767. 

Railroads  hereafter  built  not  to  take  wider  strip  for  right  of  way 
than  necessary,  764. 

Other  roads  rights  as  to,  when,  764. 

May  condemn  joint  use  of  tracks  in  narrow  passes,  gorges, 

along  cliffs,  etc.,  of  future  roads,  765. 
This  does  not  apply  to  N.,  C.  &  St.  L.  Ry.  and  possessions, 

766  (note). 
How  land  may  be  condemned  in  Tennessee  now,  766  et  seq. 

Statute  of  limitations  as  to  damages  for,  773. 
In  Alabama. 

Nature  of  railway's  holding  of  right  of  way,  774. 
Easement  acquired,  775. 

If  condemnation  had  under  charter  of  N.,  C.  &  St.  L.  Ry., 

and  land  paid  for,  the  fee  passes,  774.  737  (note). 
Trespassers  may  be  ejected  from  right  of  way,  775. 
Width  of  right  of  way  in  absence  of  condemnation,  775. 
Adverse  possession  ot  right  of  way,  775. 
Successive  appropriations  for  right  of  way,  776. 
May  condemn  for  branch  roads,  when,  639,  640. 
Power  of  other  roads  to  condemn  right  of  way.  depots,  yards, 

etc.,  of  this,  776. 
Power  of  railroads  to  condemn  connections  and  crossings  with 

others.  776. 

Cities  may  authorize  tracks  built  across  or  through  streets,  776. 
Railroads  in  Alabama  public  highways,  776. 
Franchises  forfeited  by  nonuser,  776. 


944  INDEX. 

EMINENT  DOMAIN— Continued. 

Power  of  telegraph  and  telephone  companies  to  erect    lines 

along  railroad  right  of  way,  776,  783. 
How  land  condemned  in  Alabama,  777  et  seq. 

Power  of  this  company  to  condemn  on  purchased  roads, 

777  (note). 
In  Georgia. 

Nature  of  railway's  holding  of  right  of  way,  784. 
Easement  only  acquired,  when,  784. 

Different  if  condemned  under  charter  of  N.,  C.  &  St.  L.  Ry., 

and  land  paid  for,  784,  737  (note). 
Injunction  will  lie  to  prevent  others  from  building  on  right  of 

way,  784. 

Statute  of  limitations  runs  against  right  of  way,  when,  785. 
As  to  N.,  C.  &  St.  L.  Ry.  main  line,  see  737  (note),  738. 
Misuser  of  franchise  may  work  dissolution,  785  (note). 
Power  of  cities  to  open  streets  across  tracks,  depot  grounds, 
etc.,  785. 
Where  street  opened,  railroad  not  prevented  from  laying 

additional  tracks  at  crossings,  785. 
Successive  appropriations  for  right  of  way,  786. 
Connecting  switches  with  other  roads  may  be  condemned,  786. 
May  condemn  land  for  branch  roads,  786. 
Power  of  other  roads  to  condemn  right  of  way  of  this,  786. 
To  condemn  joint  use  of  tracks,  terminal  facilities,  etc.,  of 

this,  787. 
Width  of  right  of  way  of  roads  chartered  under  general  act, 

787. 

Right  of  eminent  domain,  787. 

Privileges  granted  tc  railways  already  incorporated,  788. 
Power  of  telegraph  companies  to  occupy  right  of  way  of  rail- 
roads, 789. 

Duties  of  as  to,  789. 
Laws  apply  to  Western  &  Atlantic  Railroad,  789,  336  (note). 

Road  laws  also  apply  to,  789. 
How  land  condemned  in  Georgia,  790  et  seq. 
Character  of  title  acquired  under,  796. 
General  notes,  797. 
In  Kentucky. 

Nature  of  railway's  holding  of  right  of  way,  799. 
Easement  only  acquired,  799. 
Adverse  possession  of  right  of  way,  800. 
Presumption  on  sale  of  right  of  way,  800. 
Condemnation  cannot  be  limited  by  contract,  800. 
Constitution   of  Kentucky  to  be    accepted    before    acquiring 
land,  801. 


INDEX.  :«4o 

EMINENT  DOMAIN— Cimtlnued. 

Powers  of  railways  chartered  under  general  acts  to  acquire 
right  of  way,  lands,  etc.,  801. 

Width  of  right  of  way.  802. 

May  take  land  for  what,  802. 

Change  gauge,  802. 

Change  location,  when,  802. 
Pqwer  of  other  roads  to  cross  this.  802. 

Map  of  route  to  be  recorded,  803. 

Commissioners  to  be  notified,  when,  803. 
Power  of  telegraph  companies  to  condemn  right  of  way  along 

railroad,  804. 

Successive  appropriation,  804. 
May  condemn  for  branches,  switched,  etc.,  641. 
How  land  condemned  in  Kentucky,  804  et  seq. 

EMPLOYES. 

As  to  exemption  1'rom  road,  jury,  and  military  duty,  see  22,    and 

note  thereunder. 
Rules  and  regulations  as  to,  902. 

FAYETTEVILLE   BRANCH. 

(See  Winchester  &  Alabama  R.  R.) 

FENCES. 

In  Tennessee. 

Railroads  must  fence  or  be  liable  for  stock  killed,  808. 
Completely   exonerated,   if  track   lawfully   fenced,   and   cattle 

guards  erected,  808  (note  2). 

Fencing  in  cities  and  around  depots,  808  (note  3). 
What  are  lawful  fences,  809. 

Stock  gaps  or  cattle  guards  at  private  crossings,  712c 
Gates  and  fences  at  private  crossings,  712b. 
Cattle  guards  on  unfenced  tracks  required,  810. 
Applies  to  fields  hereafter  opened,  811. 
Liability  for  failure,  811  (note). 

In  Alabama. 

Railroads  required  to  fence,  when,  811. 

Liability  for  stock  injured,  811. 

What  are  lawful  fences,  812. 

Cattle  guards  must  be  repaired,  when,  812. 

In  Georgia. 

Duty  of  railroad  as  to  fencing,  813. 
What  are  lawful  fences,  813. 

60 


946  INDEX. 

FENCES — Continued. 

Stock  gaps  on  W.  &  A.  Railroad,  right  of  landowners  to  build, 
815. 

In  Kentucky. 

Railroad  companies  required  to  fence,  815. 

Fence  to  be  constructed  by  railroad  and  landowner,  815. 

When  one  party  builds,  other  may  be  required,  how-,  816. 

Exemptions,  817. 

Cattle  guards,  where  to  be  erected,  817. 

Landowner  building  entire  fence  may  remove  his  part,  when, 

817. 

Law  not  applicable  to  owner  receiving  compensation,  818. 
When  right  of  way  given,  company  to  erect  entire  fence,  818. 
Parties  may  agree  concerning  fences,  819. 
Fences  between  parallel  railroads  or  turnpikes,  819. 
Stock  gaps,  when  to  be  put  in,  720. 
What  are  lawful  fences,  818. 

FORFEITURE. 

(See  "Charter,"  subhead  "Forfeiture  of.") 
Grounds  of,  695. 

Abandonment  of  right  of  way  as  ground  for,  697. 

May  abandon  stations,  depots,  etc.,  when,  914. 

May  abandon  whole  or  part  of  right  of  way,  when,  411  (note  3). 

Right  to  remove  rails,  bridges,  etc.,  in  case  of,  410  (note  1). 

FRANCHISE. 

(See  "Charter.") 

FREIGHT  CHARGES. 
In  Tennessee. 

What  rates  may  be  charged,  819. 

What  on  branch  roads,  820. 

Must  receive  freight  cars  of  other  companies  and  charge   no 

more  than  on  their  own  line,  820. 
Demurrage  charges,  821. 
Railroads  may  hold  freight  for  charges,  821. 
May  refuse  to  receive  unless  charges  paid,  821. 
One  road  cannot  bind  connecting  as  to  unless  by  contract,  821. 
Rates  where  articles  shipped  are  not  as  represented,  821. 
Receiving  carrier  is  liable,  when,  821. 
Goods  may  be  sold  for  charges,  821. 

What  notice  required,  821  (note  1),  822. 

When  notice  excused,  821  (note  2). 


INDEX.  947 

FREIGHT  CH ARC ES—  Continued. 

Noiice  to  consignor  of  nonacceptance,  822  (note  3). 
Advertisement,  822. 
Disposition  of  proceeds,  822. 
Perishable  goods  may  be  sold  sooner,  822. 
Discriminations  in  freight  charges,  when  allowed,  823. 
May  refuse  to  carry  passengers,  when,  823  (note  2). 

In  Alabama. 

Discriminations  unlawful.  823. 

Special  rates  to  industrial  enterprises  allowed,  when,  823. 

Rates  to  be  posted  at  depot,  823. 

Extortion  prohibited,  824  (note  1). 

Pooling  unlawful,  824  (note  3). 

Railroad  commission  revise  tariff  of  charges,  824  (note  4). 

Freight  and  passengers  may  be  transported  free,  however,  824. 

Carrier  has  lien  on  goods  for  charges,  824. 

Goods  may  be  sold  for  charges,  824-5. 

Perishable  goods,  when  and  how  sold,  824. 

Other  goods  may  be  sold,  when  and  how,  825. 

In  Georgia. 

Charges  must  be  reasonable,  825. 

Extortion  prohibited,  825. 

Unjust  discrimination,  826  (note  1). 

Railroad  commission  make  charges,  826  (note  2). 

Storage  charge?,  820  (note  3). 

Demurrage,  826  (note  4). 

Railroad  has  lieu  on  goods  for  freight  charges,  826. 

Goods  may  be  sold  for  charges,  when,  827. 

Perisho  ole  goodt  may  also  be  sold,  when,  827. 

Live  stock  may  be  sold  for  charges,  when,  827. 

Deposit  of  proceeds,  827. 

In  Kentucky. 

Rates  must  be  just  and  reasonable,  828. 

Extortion  prohibited,  828. 

Railroad  commission  supervises,  828  (note  3). 

Discrimination,  what  is,  828. 

Preference  or  advantage  prohibited,  828. 

Long  and  short  haul,  828. 

Demurrage,  828. 

Railroad  has  lien  on  goods  for  charges.  829. 

Goods  may  be  snid  for  charges,  when.  829. 

Perishable  goods  may  also  be,  829. 

Unclaimed,  may  be,  how,  829. 

Baggage,  may  be,  how,  829. 


948  INDEX. 

GADSDEN  BRANCH. 

(See  "Tennessee  &  Coosa  Railroad.") 

GAUGE. 

(See  "Alter  Gauge.") 

GEORGIA,  CAROLINA  &  NORTHERN   RAILWAY. 

Lease  from  N.,  C.  &  St.  L.  Ry.  terminal  facilities  at  Atlanta,  554. 
Contract  for  interchange  of  business,  554. 

HICKMAN  &  OBION    RAILROAD.      (Part  of  Northwestern  Branch). 

How  acquired  by  Nashville  &  Northwestern  R.  R.  Co.,  77. 

How  acquired  by  N.,  C.  &  St.  L.  Ry,  77. 

Sale  of  road  to  Nashville  &  Northwestern  R.  R.  Co.  legal,  77  (note). 

Original  charter  of  in  Kentucky,  104  (note). 

Original  charter  of  in  Tennessee,  104  (note  4). 

General  powers,  104. 

Exclusive  transportation,  freight  charges,  105. 

Lands  may  be  purchased  for  what,  106. 

Crossings  of  roads  and  water  courses,  106. 

Right  of  way,  how  condemned,  106. 
Additional  powers  as  to,  108. 

Intrusion,  punished,  107. 

Obstruction  a  nuisance,  107. 

May  establish  warehouses  and  charge  storage,  107. 

Crossings  must  be  constructed  by  company,  108. 

Exemption  from  taxation,  108. 

May  extend  road  to  Dresden,  when  and  how,  108. 
Map  of  road,  see  map  in  front  of  book. 
Mortgages  on.     (See  "Mortgages.") 

HIWASSEE  RAILROAD. 

Name  changed  to  East  Tennessee  &  Georgia  R.  R.  Co.,  64  (note  1). 
N.  &  C.  R.  R.  Co.  given  all  the  rights,  privileges  and  immunities 

of  this  company  in  Georgia,  61-2. 
Original  charter  of,  63. 

General  powers,  63,  64. 
Right  of  way,  width  of,  68. 
How  acquired,  68. 
Damages  for,  68. 
Condemnation  for,  69. 

Materials  to  keep  in  repair,  how  taken,  70. 
Through  state  lands,  71. 

Lands  for  warehouses,    booths,    reservoirs,  etc.,  how    ac- 
quired, 71. 


INDKX.  949 

HIWASSEE  RAILROAD— Continued. 

Road  crossings,  72. 
Private  crossings,  72. 
Freight  charges.  73. 
Exemption  from  taxation,  73. 
Transportation  charges,  73. 
Connections  with,  authorized,  73. 

HUNTSVILLE  AND  ELORA  RAILROAD.     (Huntsvllle  Branch.) 

How  acquired  by  N.,  C.  &  St.  L.  Ry.,  214. 

Legality  of  purchase  of,  214  (note). 

Deed  to,  224. 

Where  registered,  224  (note). 

What  franchises,  etc.,  passed  under  sale,  214. 

Width  of  right  of  way,  $14. 

Where  incorporated,  215. 

Distance  built  when  purchased,  215. 

Original  charter  of,  215-224. 

General  powers,  215,  216. 

Exclusive  transportation,  rate  of  charge,  217. 

Real  property  may  be  purchased  for  what,  219. 

Crossing  roads  and  water  courses,  219. 

Right  of  way,  how  condemned,  219. 

Same  as  N.,  C.  &,  St.  L.  Ry.,  221  (note). 
In  absence  of  contract  200  feet,  221. 

Character  of  title  acquired,  see  §§  24,  25  of  charter  of  N.  C. 
&  St.  L.  Ry.,  15,  17. 

Obstructing  or  damaging  road,  bridges,  etc.,  punishment,  221. 

Obstruction  a  public  nuisance,  222. 

Storage  may  be  charged,  222. 

Crossings  of  roads  and  lands,  223. 

Charter,  how  n  mended,  223. 

May  dispose  of  road,  franchises,  etc.,  223. 

N..  C.  &  St.  L.  Ry.  a&  purchaser  of,  may  do  likewise,  910. 
Effect  of  purchase  in  rendering  N.,  C.  &  St.  L.  Ry.  a  domestic  cor- 
poration in  Alabama,  843. 
Acts  of  Alabama  relating  to. 

Rights  and  privileges  granted  through  Madison  county,  226. 
Map  of,  see  map  in  front  of  book. 
Mortgages  on.    (See  "Mortgages.") 

INMAN  BRANCH. 

How  acquired,  269. 

Legality  of  purchase  of,  269  (note). 

Deed  to.  270. 

Where  registered,  269. 


950  INDEX. 

INMAN  BRANCH— Continued. 

When  Tennessee  Coal,  Iron  &  Railway  Co.  chartered,  269  (note). 
Map  of,  see  map  in  front  of  book. 
Mortgages  on.     (See  "Mortgages.") 

JASPER  BRANCH. 

How  acquired,  264. 

Width  of  right  of  way,  265. 

State  aid  for,  266.  (note  3),  274. 

Road  from  state  line  to  Jasper  authorized  by  Tennessee,  how,  274. 

Road  from  Bridgeport  to  state  line  authorized  by  Alabama,  how, 

275. 

When  completed.     (See  map  in  front  of  book). 
Map  of,  see  map  in  front  of  book. 
Mortgages  on.     (See  '"Mortgages.") 

LATERAL  ROADS. 

(See  "Branch  Roads.' ) 

LEASE. 

In  Tennessee. 

Power  of  N.,  C.  &  St.  L.  Ry  to  lease  other  roads,  830. 

By-law  on  subject,  648. 
Charter  provision  on  subject,  830. 

Amendment  to  charter  on  subject,  831. 

Validity  of  amendment,  831  (note  1). 
General  laws  conferring  power,  833  et  seq. 
Who  to  authorize  lease,  directors  or  stockholders,  836. 
What  vote  necessary,  838. 
What  notice  necessary,  838. 
Power  to  lease  its  own  road,  or  part  thereof,  to  others,  839. 

Who  to  authorize,  841. 

Vote  necessary,  841. 

May  lease  part  of  line,  849  (note  2). 
Power  to  lease  its  purchased  or  leased  roads,  842. 
Rolling  stock,  power  to  lease,  843. 

Both  roads  must  have  power,  the  one  to  lease,  the  other  to 
accept,  489  (note  1). 

In  Alabama. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  lease  other  roads  in  Alabama, 

843. 

To  lease  its  own  road  to  others,  843. 
Power  as  to  its  main  line,  844. 


INDEX.  951 


LEASE—  Continued. 


Power  as  to  its  purchased  roads,  845.  847  (note). 

Power  to  sub-lease  leased  roads,  845. 
General  laws  conferring  power  in  Alabama,  846. 
Both  roads  must  have  power,  489  (note  1). 
May  lease  part  of  line,  849  (note  2). 

In  Georgia. 

Power  of  X..  C.  &  St.  L.  Ry.  to  lease  other  roads  in  Georgia, 

847. 
Power  to  lease  its  own  road  to  others,  847. 

As  to  its  main  line,  848. 

As  to  its  purchased  or  leased  roads,  849. 

Both  roads  must  have  power,  849  (note  1). 

May  lease  a  part  of  line,  849  (note  2). 
Rolling  stock,  contracts  for  lease  of,  897. 
Railroads  chartered  under  general  laws  may  lease  their  own 

lines,  850. 

May  lease  other  roads,  850,  851. 
Lease  subject  to  burdens  of  lessor  corporation,  852. 

Corporation  liable  notwithstanding  sale  or  lease,  852. 
Foreign  corporations,  how  recognized  in  Georgia,  852. 

What  powers  they  may  not  exercise,  853. 

Penalty,  853 

Ownership  of  lands  by,  853. 

Charter  of,  how  far  binding  in  Georgia,  854. 
Railroads  using  same  terminal  tracks,  855. 
Common  powers  of  corporations  under  Georgia  law,  855. 

In  Kentucky. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  lease  other  roads  in  Kentucky, 

856. 
Power  to  lease  its  own  road  to  others,  856. 

As  to  its  main  line,  857. 

As  to  its  purchased  roads.  858. 

As  to  sub-leasing  its  leased  roads,  859. 

May  lease  part  of  line,  858  (note  1). 

Both  roads  must  have  power.  858  (note  2). 
Lease  must  be  registered  where.  858  (note  3). 
Lease  of  franchise.-  does  not  affect  existing  liabilities,  859. 
Foreign  corporations,  subject  to  laws  relating  to  domestic.  859. 

Denied  right  to  hold  real  estate  until  it  becomes  domestic, 
859. 

Must  be  incorporated  in  Kentucky.  860. 

Must  accept  constitution  of  Kentucky.  860,  861. 

Law  complied  with  by  N..  C.  &  St.  L.  Ry.  In  leasing  P.  T. 
&  A.  Ry..  861  (note). 


952  INDEX. 

LEASE— Continued. 

What  roads  have  been  leased  by  N..  C.  &  St.  L.  Ry. 

Western  &  Atlantic  R.  R.,  335. 

Chattanooga  Terminal  R.  R.,  448. 

L.  &  N.  Terminal  R.  R.,  557. 

Tennessee  Midland  R.  R.,  455. 

Paducah,  Tennessee  &  Alabama  R.  R.,  487. 

LEBANON  BRANCH. 

(See  "Tennessee  &  Pacific  Railroad.") 

LOUISVILLE  &  NASHVILLE   RAILROAD  COMPANY. 

Lease  by  it  of  tracks  from  its  old  depot  to  Decatur  depot  in  Nash- 
ville, 533. 
Modification  agreement  as  to  original  lease,  538. 

Lease  to  L.  &  N.  Terminal  Co.  referred  to,  539. 

Lease  of  L.  &  N.  R.  R.  Co.  to  Terminal  Co.  also  referred  to,  540. 

Former  lease  suspended  in  part,  540. 

Provision  for  revival,  540. 

LOUISVILLE  &   NASHVILLE  TERMINAL  COMPANY. 

Property  of,  how  acquired,  557. 
New  depot  now  being  built  by,  559  (note). 
Mortgage  executed  by  Terminal  Company,  559. 
Original  charter  of  (annotated),  559. 

Validity  of  charter,  559. 

General  powers  of,  559,  560. 

Special  provisions,  560. 

Express  and  implied  powers,  561. 

Charter  may  be  repealed  or  amended,  561. 

May  borrow  money  and  issue  bonds,  562,  564. 

May  mortgage  its  property,  562,  564. 

May  condemn  land,  562. 

May  acquire  land,  how,  562. 

May  lease  to  others,  562. 

Land  may  be  taken  by,  how,  563. 

May  construct  tracks  or  depots,  across,  under  or  over  streets 
and  alleys,  how,  563. 

May  keep  hotel,  restaurant,  and  news  stand  where,  564. 

May  lease  its  property  to  railroads,  564. 

Such  railroad  companies  may  guarantee  bonds  or  contracts 
of  Terminal  Company,  when,  564. 

Each  may  subscribe,  hold,  and  dispose  of  stock  or  bonds  In 
the  other,  564. 

Where  charter  registered,  565  (note). 


INDEX.  953 

LOUISVILLE  &  NASHVILLE  TERMINAL  CO.— Continued. 

Lease  contract  for  property  of,  566. 

Description  of  real  estate  leased.  566  et  seq. 
Depot  buildings,  tracks,  etc.,  578. 

Embraces  property  conveyed  to  It  by  N.,  C.  &  St.  L.  Ry.,  578. 
Property  between  Church  and  Cedar  streets,  579. 
Property  between  Church  and  Broad  streets,  580. 
Property  between  Broad  and  Spruce  streets,  580. 
Rights  of  way,  tracks,  etc.,  pass,  582. 
Depot  buildingc,  easements,  etc.,  pass,  583. 
Expiration  of  lease,  583. 
Embraces  property  conveyed  to  it  by  L.  &  N.  R.  R.  Co.,  583. 

Right  of  way,  tracks,  etc.,  pass.,  585. 
Guarantee  of  peaceable  possession,  585,  586. 
Original  lease  of  the  two  roads  to  Terminal  Company  unimpaired 

by  this  lease,  586. 

Agreement  to  renew  lease  for  999  years,  how,  587. 
To  execute  additional  papers,  etc.,  to  perfect  title,  when,  587. 
Terminal  Company  to  construct  new  depot,  tracks,  terminal  facil- 
ities, etc.,  589. 

To  keep  insured  depot,  buildings,  etc.,  589. 
To  pay  taxes,  assessments,  etc.,  on  leased  property,  590. 
To  re-enter  and  lake  possession  on  default  of  railways,  594. 
Rent — amount  and  how  paid,  590. 

Railroad  companies  agree  to  pay  rent  and  keep  covenants,  591. 
To  hold  Terminal  Company  harmless,  591. 
To  keep  premises  in  repair,  when  and  how,  592,  593. 
Terminal  Company  may  enter  on  premises  and  notify  railway  of 

want  of  repair,  593. 

Covenant  to  surrender  at  expiration  of  lease,  594. 
Lease  where  registered,  595  (note). 

MANNIE  BRANCH. 

(See  "Nashville  &  luscaloosa  R.  R.;"  ''Allen's  Creek  Branch.") 

MAP  OF  ROAD. 

(See  in  front  of  book,  p.  — .) 

McMINNVILLE  BRANCH. 

(See  "McMlnnville  and  Manchester  Railroad,"  "Southwestern 
Railroad,"  and  "Bon  Air  Railroad."  They  now  form  what  is 
known  as  the  "McMinnville  Branch.") 

McMINNVILLE  &  MANCHESTER  RAILROAD.     (Part  of  McMinnville 
Branch.) 

How  acquired.  166. 


954  INDEX. 

McMINNVlLLE  &  MANCHESTER  RAILROAD— Continued. 

Legality  of  purchase,  1C8  (note). 
Deed  to,  158. 

Where  registered,  161  (note). 

Decree  vesting  title  to  Memphis  &  Charleston  R.  R.  Co.,  183. 
Where  registered,  184. 

What  franchises,  etc.,  passed  under  sale,  169. 
Width  of  right  of  way,  169. 
Termini  of,  170. 

Distance  built  when  purchased,  170. 

Original  charter  of  (annotated),  170. 

General  powers  of,  170,  171. 

Exclusive  transportation  on,  176. 

Rate  of  freight  charges,  176. 

Real  property  may  be  purchased  under  for  what,  177. 
Crossing  and  taking  roads,  water  courses,  and  turnpikes,  177. 
Purchase  of  bridges,  roads,  etc.,  178. 
Right  of  way,  how  condemned,  178. 

Same  as  N.,  C.  &  St.  L.  Ry.,  see  15,  17. 

Character  of  title  acquired,  also  same. 

In  absence  of  contract  200  feet,  when,  179. 

Penalty  for  intrusion  on.  180. 

Obstruction  public  nuisance,  181. 

Obstructing  or  damaging  road,  bridges,  etc.,  punishment 

for,  181. 

Storage  may  be  charged,  181. 
Crossing  of  roads  and  lands,  182. 
Exemption  from  taxation,  183. 
Acts  amending  charter  of,  and  relating  to  road. 

Rights,  powers,  and  privileges  of  N.  &  C.  R.  R.  Co.  conferred 

on  it,  184. 

Capital  increased,  184. 
Scale  of  voting  provided,  184. 
Route  located,  184. 

Authorized  to  extend  to  Sparta,  how,  184. 
Any  stockholder  allowed  to  be  director,  187. 
Town  of  McMinnville  authorized  to  subscribe  for  stock  in,  187. 
Purchasers  at  state's  sale  of  road,  authorized  to  be  credited 
with  any  amount  recovered  by  United  States  against  it  for 
iron  rails,  etc.,  furnished,  188. 
Claims  between  state  and  United  States  in  regard  to  this  road 

authorized  to  be  settled,  how,  188. 

B.  J.  Hill,  president  and  receiver  of  road,  authorized  to  be  set- 
tled With,  189. 
State  aid  to,  189. 
Internal  improvement  acts,  45. 
Sale  of  road  authorized  to  be  postponed,  190. 


INDEX.  955 

McMINNVILLE  &  MANCHESTER  RAILROAD— Continued. 

Map  of,  see  map  in  front  of  honk. 
Mortgages  on.     (See  "Mortgages.") 

MEETINGS. 

(See  "Directors,"  subhead  "Meetings:"  see  also  "Stockholders," 
subhead  "Meetings.") 

MEMPHIS  BRANCH. 

(See  "Tennessee  Midland  Railway.") 

MEMPHIS  BRANCH   R.   R.  &  STEAMBOAT  CO.  OF  GEORGIA. 

(See  "Rome  Railroad.") 

MEMPHIS  &  CHARLESTON   RAILROAD  COMPANY. 

Lease  of  joint  use  of  track  from  Stevenson,  Ala.,  to  Chattanooga, 
from  N.,  C.  &  St.  L.  Ry.,  543. 
Act  authorizing  same,  32. 
Consideration,  543. 
Duration  of  lease.  543. 
Conditions,  544. 

Connecting  track  in  Chattanooga  to  be  kept  clear,  544. 
Employes  to  be  under  whose  order,  545. 
Terminal  facilities  provided  for,  545. 
Local  business  between  Stevenson  &  Chattanooga,  545. 
Suits  for  damages  on  line  of  road  provided  for,  546. 
Fees  for  through  mail,  when,  546. 
Agents  of  N.,  C.  &  St.  L.  Ry.  to  act  for,  when,  546. 
Telegraph  wires  provided  for,  546. 
Contract  to  leise  transferable,  546. 
Since  acquired  by  Southern  Railway  Co.,  543  (note). 
Arbitrators  provided  for,  547. 
Lease,  duration  of.  and  how  terminated,  547. 
Old  lease  abrogated,  547. 

MIDDLE  TENNESSEE  &  ALABAMA   RAILWAY  CO. 

How  acquired,  40*>. 
Legality  of  purchase.  409  (note  3). 
Sale  carried  bonds,  409  (note  1). 
What  franchises  passed  under  sale,  410. 
Distance  built  when  purchased.  410. 

Right  to  remove  rails  on  part  of  road  not  In  use,  410  (note  1). 
Right  of  N.,  C.  &  St.  L.  Ry.  to  abandon  whole  or  any  part  of  right 
of  way,  411  (note  3). 


956  INDEX. 

MIDDLE  TENNESSEE  &  ALABAMA  RY.  CO.— Continued, 

Width  of  right  of  way.  411. 

Statute  of  limitations  as  against,  412  (note  2). 

Deed  to,  435. 

Where  registered.  443. 

Original  charter  or  (in  Tennessee)  (annotated),  413. 

General  powers  under,  413,  414. 

Express  and  implied  powers,  415. 

Charter  may  be  repealed  or  amended,  415. 

Condemnation  of  right  of  way,  416. 

Land  may  be  taken,  how,  416  et  seq. 

Statute  of  limitations  as  to  damages  for  right  of  way,  421. 

Transportation  charges,  421. 

Gauge,  421. 

Construction  of  tracks  on  highways,  how,  421. 

Crossings,  signboards,  etc.,  421. 

Regulation  for  running  trains,  422. 

Prohibited  contracts,  422. 

Freight  from  other  roads  must  be  received,  422. 

Charter  where  registered,  424  (note). 
Original  charter  of  (in  Alabama)   (annotated),  425. 

General  powers  of,  425   (notes). 

May  cross  navigable  streams,  426  (note). 

May  use,  cross  or  change  public  roads,  426  (note). 

Consolidate,  426. 

May  purchase,  aid  or  lease  other  roads,  427. 

Branch  road  may  be  constructed  or  line  extended,  427. 

Mode  of  making  purchase  or  extension  or  constructing  branch 
roads,  427. 

Increasing  bonded  indebtedness,  427. 

May  sell  property,  when,  427. 

Railroads  chartered  in  other  states  may  aid,  427. 

Franchises  forfeited  by  nonuser  for  five  consecutive  years,  427. 
Decree  confirming  sale  to  Joseph  Dickson,  443. 
Where  deed  to  Joseph  Dickson  registered,  447  (note). 
Effect  of  purchase  of  Alabama  part  in  rendering  N.,  C.  &  St.  L. 

Ry.  a  domestic  corporation  there,  843. 
Map  of,  see  map  in  front  of  book. 
Mortgages  on.     (See  "Mortgages.") 

MILEAGE  OF   ROAD. 

(See  map  in  front  of  book.) 

MORTGAGES. 

Consolidated,  to  secure  an  issue  of  $20,000,000  five  per  cent,  gold 
coupon  bonds,  on  entire  system,  596. 


INDKX. 

MORTGAGES— Continued. 

Underlying  bonds  to  be  taken  up,  602,  613,  614. 

After  acquired  property  subject  to  this  mortgage,  602,  610,  618. 

Stockholders  authorize  the  issue,  603. 

Directors  authorize  the  i3sue,  606. 

Form  of  bond  secured,  606. 

Property  transferred  to  secure,  608  et  seq. 

Bonds  to  be  issued,  how  and  for  what,  restrictions,  612  et  seq. 

Underlying  bonds,  how  exchanged  for  these,  813. 

Amount  of  bonds  to  be  issued  for  improvements.  614. 

For  purchase  cf  additional  railroads  and  extensions,  615. 

Railway  to  retain  possession  of  property  until  default,  616. 

Trustee  to  release  mortgage  on  certain  property,  etc.,  when, 
617. 

Taxes,  who  to  pay,  617. 

Railway  to  execute  additional  title  papers,  when,  617. 

On  default,  trustee  to  take  charge  and  operate,  how,  618. 

Mortgage  to  be  foreclosed,  when,  619. 

All  bonds  fall  due  on  default,  when,  619. 

Bondholders  may  purchase  at  sale,  621. 

In  case  of  foreclosure,  railway  waives  certain  rights,  622. 

Mortgage  becomes  void  and  lien  released,  when,  622. 

Majority  bondholders,  rights  of:  trustee,  622. 

Trustee  may  resign  or  be  removed,  how,  623. 

Where  mortgage  registered,  625  (note  1). 
Western    &    Atlantic    mortgage    to    secure    income    bonds,    625 

(note  3). 
Underlying  bonds  and  mortgages  on  branches. 

Sparta,  Fayetteville  &  Huntsville  branch,  598. 

Tracy  City  branch,  598. 

Jasper,  Inman  \  Sequatchie  branch,  598. 

Lebanon  branch,  599. 

Centreville  branch,  600. 

Bon  Air  branch,  600. 

Duck  River,  Valley,  or  Columbia  branch,  600. 

Shelbyville  branch,  601. 

Total  underlying  bonds  on  branches,  601-2. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  mortgage  its  property,  generally, 
862. 

In  Tennessee. 

What  power  exists  under  its  charter,  863. 

Under  the  general  law,  863-4-5. 

Mortgage  not  to  affect  certain  judgments,  etc..  865,. 

Who  to  authorize,  directors  or  stockholders,  865. 

Vote  necessary,  865. 

After  acquired  property  may  be  mortgaged,  866. 


958  INDEX. 

MORTGAGES— Confuted. 

Future  earnings  may  be  mortgaged,  866. 
Leased  roads  may  be  mortgaged,  867. 
Rolling  stock  and  personal  property  may  be,  867. 
Part  of  road,  instead  of  whole,  may  be,  867. 

In  Alabama. 

Power  to  mortgage  its  road  in  Alabama,  868. 

As  to  its  main  line,  868. 

Decisions  on  subject,  869. 

Purchased  roads  of  Alabama  may  be  mortgaged,  869. 

Leased  roads  in  Alabama  may  be,  870. 

Rolling  stock  may  be,  870. 

In  Georgia. 

Power  to  mortgage  its  road  in  Georgia,  870. 

As  to  its  main  line,  871. 

After  acquired  property  may  be,  872,  874  (note  2). 

Part  of  road,  as  well  as  whole,  may  be,  872  (note  2). 

Purchased  or  leased  roads  may  be,  872. 

Railroads  chartered  under  general  law,  may,  873. 

In  Kentucky. 

Power  to  mortgage  its  purchased  or  leased  roads  in  Ken- 
tucky, 874. 

Mortgages  not  opposed  to  public  policy,  875. 
Railroads  chartered   under  general  acts  Kentucky,  may, 
875. 

NASHVILLE,  CHATTANOOGA,  &  ST.  LOUIS  RAILWAY.  (Main  line.) 

Chartered  originally  as  the  Nashville  &  Chattanooga  Railroad  Com- 
pany, 1. 

Name,  how  and  when  changed,  1  (note),  25. 
Charter  of  (annotated),  1. 

General  powers  under,  1,  2  (note  3). 

(See  Index,  generally,  for  particular  power  desired.) 
Capital  stock,  amount  of,  originally,  2. 
Capital  stock,  present  amount  of,  4  (note),  667. 

(See  "Capital  Stock,"  herein,  667  et  seq.,  for  full  discussion 

of,  and  who  to  vote  it,  transfer  it,  etc.) 
Shares  original  value  of,  2. 

Present  value  cf  shares,  and  how  increased,  3  (note  1),  665,  669. 
Subscription  to  original  stock,  who  made  by,  4. 
Incorporation  perfected,  when,  4,  5. 
President  and  directors,  how  chosen,  6,  721,  876. 
Directors,  number  of,  6,  724. 
Vacancy  in  board,  how  filled,  8,  723. 
Contracts  and  agreements  binding  without  seal,  8,  707. 


INDEX.  959 

NASHVILLE,  CHATTANOOGA  &  ST.  LOUIS  RY.— Continued, 

Liability  of  directors,  8,  729. 

Lateral  roads  within  twenty  miles  of  this  prohibited,  9,  690. 

Transportation,  rate  of  charge,  9,  691. 

Exclusive  transportation,  9,  691. 

Stock,  how  trantferred,  10,  670. 

Capital  stock  increased,  and  to  be,  how,  11,  665. 

Directors  may  call  general  meeting,  11,  916. 

Annual  report,  11. 

Qualification  of  officers  and  voters,  12,  919. 
Scale  and  method  of  voting,  12,  919. 
Real  property  may  be  purchased  for  jvhat,  13,  878. 
Crossing  and  taking  roads,  water  courses  and  turnpikes,  13. 
Bridge  over  Tennessee  river  at  Bridgeport,  how  authorized,  14 

(note). 

Bridges,  roads,  etc..  authorized  to  be  purchased,  14. 
Right  of  way,  how  condemned,  15. 

Character  of  title  acquired,  16  (note  1). 

For  what  may  be  taken,  17  (note  2),  878. 

May  make  successive  appropriations.  17  (note  3),  745. 

How  condemnation  to  be  made  now,  17  (note  4). 

In  absence  of  contract,  200  feet,  when,  17,  18  (note). 

Penalty  for  intrusion  on,  or  damaging,  18,  19. 

Obstructing  a  public  nuisance.  19. 

See  also  general  heading,  "Right  of  Way,"  in  this  index. 
Storage  charges  allowed,  when,  20. 
Dividends  paid,  when,  20,  734  et  seq. 
Banking  prohibited,  may  insure,  21. 
Crossings  of  roads  and  lands,  21,  710  et  seq. 
Additional  powers,  21,  627  et  seq. 
Charter,  how  amended,  21.  678  et  seq. 
Charter  irrevocable,  22,  678. 
Military,  jury  and  road  duty,  exemptions*  of  employes  from, 

22,  693. 

Dissolution,  directors  trustees  in  case  of,  22,  733. 
Taxation,  exemption  from,  23,  693. 

Branches,  who  may  build,  duty  of  this  road  as  to,  23,  636  et  seq. 
Status  of  charter  before  the  law,  677. 
Amendments  to  Charter  (generally). 

How  amendments  to  be  made,  678. 

Legislature  cannot  force,  678. 

Accepted  and  adopted,  are  valid  though  not  petitioned  for, 
679. 

Legislature   may    pass    enabling   acts   enlarging    powers, 
when,  679. 

Such  enabling  acts  not  protected  as  contracts,  and  can 
be  repealed,  680. 


960  INDEX. 

NASHVILLE,  CHATTANOOGA  &  ST.   LOUIS  RY.—  Continued. 

Amendments  to  Charter  (legislative). 

Stockholders  allowed  one  vote  for  each  share,  28. 
Stockholders  at  any  meeting  may  fix  time  and  place  of 

next  meeting,  28. 
Directors  to  make  by-laws,  28. 

Directors  to  appoint  judges  and  clerks  of  elections,  28. 
Dividends  to  be  paid  how,  28,  734. 
City  of  Charleston,  and  Georgia  Railroad  and  Banking  Co. 

allowed  representative  in  board  of  directors,  29. 
Lease  of  Winchester  &  Alabama  Railroad  authorized,  30. 
Lease  of  auy  other  road  connecting  with  it  authorized,  30. 

Discussion  of  last  amendment,  831  (note). 
Amendments  to  Charter  (Chancery  Court).) 

Decree  changing  name  to  N.,  C.  &  St.  L.  Ry.,  25. 
Validity  of  this  change,  1  (note  1). 
Decree  making  other  amendments,  50-55. 
Validity  of  these  amendments,  27  (note),  695. 
Franchises  of  the  N..  C.  &  St.  L.  Ry.,  what  they  now  are,  681. 
What  is  a  franchise,  682. 
Kinds  of.  683. 
How  alienated,  683. 

Secondary  franchises  in  Tennessee  may  be  alienated  by  stat- 
ute, 684. 

Property  necessary  to  the  exercise  of  the  franchise  not  gen- 
erally vendible,  when,  689,  688. 
Nonuser  of  franchise  no  forfeiture  of,  688. 
What  franchises  in  charter  protected  as  contract. 

That  of  being  a  corporation  protected,  689. 
To  buy  and  sell  real  and  personal  estate  protected,  689. 
To  contract,  sue.  make  by-laws,  etc.,  protected,  689. 
To  operate  its  railroad  between  its  termini,  to  the  exclu- 
sion of  all  others  within  twenty  miles,  protected,  690. 
Exemption  from  compulsory  amendments  to  charter,  691. 
Exclusive  right  of  transportation  over  road,  691. 
Power  to  condemn  property,  691. 
Operating  warehouses  for  pay,  692. 
Exemption  of  capital  stock  from  taxation,  693. 
Implied  rights,  though  not  expressed  in  charter,  protected, 

693. 
Exemption  of  employes  from  road,  military  and  jury  duty 

not  protected,  693. 
Exemption  from  legislative  control  as  to  freight  charges, 

not  protected.  693. 

.  May  purchase  franchises  of  other  companies,  686,  878  et  seq. 
At  judicial  sale,  686  et  seq. 
Purchasers  may  reorganize,  687. 


INDEX.  961 

NASHVILLE,  CHATTANOOGA  &  ST.  LOUIS  RY.—  Continued. 

Exemptions  from  taxation  do  not  pass  at.  687. 
By  purchase,  688. 

See  "Purchase,"  herein,  p.  878  et  seq. 
Forfeiture  of  charter,  grounds  of,  695. 

Abandonment  of  right  of  way  as  ground  for,  697. 

Abandonment  of  uc-pots  and  stations  does  not.  when,  914. 
Alabama  Acts  and  Resolutions  Relating  to. 

Right  of  way  granted  through  Jackson  county  with  rights  and 
privileges  of  Tennessee  charter,  55,  59. 

Taxes  to  be  assessed  in  Alabama,  how,  55,  59. 

Resolution  in  regard  to  right  of  way  through  Jackson  county,  56. 

Bridge  over  Tennessee  river  allowed  to  be  constructed,  how,  57. 

Jasper  Branch  from  Bridgeport  to  state  line  authorized  to  be 
constructed  how,  57. 

Ponds  along  right  of  way  to  be  drained,  58. 

Right  of  way  for  Huntsville  &  Elora  Railroad,  59. 

Right  of  way  granted  through  Madison,  Marshall  and  Etowah 

counties,  how,  60. 
Georgia  Acts  ana  Resolutions  Relating  to. 

Right  of  way  granted  through  Dade  county,  how,  61. 

Charter  of  Hivrassee  Railroad  Co.,  63. 

Stevenson,  Sand  Mountain  &  Dalton  Railroad  allowed  to  con- 
nect, 74. 

Service  of  process  on,  how  to  be  perfected,  74. 

N.,  C.  &  St.  L.  Ry.  granted  all  the  rights  of  Hiwassee  Rail- 
road Co.,  in  Georgia.  61-2. 
Tennessee  Acts  and  Resolutions  Relating  to. 

Stock  in  Chattanooga,  Harrison,  Georgetown  &  Charlotte  Rail- 
road Co.,  allowed  to  be  subscribed  for,  31. 

Bridge  over  Tennessee  river  allowed  to  be  built,  how,  31. 

Memphis  &  Charleston  Railroad  Co.  allowed  to  be  contracted 
with  for  joint  use  of  road  between  Stevenson  and  Chatta- 
nooga, how,  32 

Lease  contract  for  same,  543. 

Shelbyville  Branch  granted  rights  and  privileges  of  main  line, 
33. 

Watchman  at  Church  street  crossing,  in  Nashville,  required,  34. 

Nashville  &  Northwestern  Railroad,  authority  to  lease,  34. 

Alabama  &  Chattanooga  Railroad  Co.,  allowed  to  cross  tracks 
of.  how,  40. 

Towns  of  Nashville,  Murfreesboro.  Shelbyville  and  Winchester 
authorized  to  subscribe  for  stock  in,  how,  40. 

Amount  they  subsequently  subscribed,  42  (note). 

Section  33  of  charter  construed  by  act,  and  authority  given 
in  this  instance  to  mortgage  road.  42. 

Validity  of  above  act  construing  charter.  43  (note). 

61 


962  INDEX. 

NASHVILLE,  CHATTANOOGA  &  ST.   LOUIS  BY.— Continued. 

State  aid  to,  43. 

Internal  improvement  acts,  45. 

Resolution  asking  Georgia  for  right  of  way  for,  45. 

Resolution  asking  Alabama  for  right  of  way  for,  46. 

Resolution  allowing  petition  of  W.  G.  Harding,  D.  H.  McGav- 
ock,  and  Lucy  McKelvey  to  be  filed  for  damages  for  right 
of  way  on  Northwestern  division,  47. 

Resolution  authorizing  suit  against,  for  state's  interest  as 
stockholder  in  Nashville,  Murfreesboro  &  Shelbyville  Turn- 
pike, 49. 

Resolution  in  reference  to  claim  of  exemption  from  taxation 
on  Northwestern  division,  49. 

Lease  to  L.  &  N.  R.  R.  Co.,  of  tracks  from  old  depot  of  latter  com- 
,  pany,  to  Decatur  depot  in  Nashville,  533. 

Modification  agteement  as  to  original  lease,  538. 

Lease  to  L.  &  N.  Terminal  Co.,  referred  to,  539,  540. 

Former  lease  suspended  in  part,  540. 

Provision  for  revival,  540. 
Lease  to  Alabama  Great   Southern  Railroad   Co.   of  joint  use  of 

tracks  between  Wauhatcie  and  Chattanooga,  550. 
Lease  to  Memphis  &  Charleston  Railroad  Co.,  of  joint  use  of  tracks 
from  Stevenson,  Ala.,  to  Chattanooga,  Tenn.,  543,  32. 

Lessee  road  now  owned  by  Southern  Railway  Co.,  543  (note). 
Lease  to  East  Tennessee,  Virginia  &  Georgia,  and  Georgia  Ry.  Co., 
of  joint  use  of  tracks  of  W.  &  A.  Railroad,  at  Dalton,  Ga_,  548. 

Lessee  road  now  owned  by  Southern  Ry.  Co.,  548  (note). 
Lease  to  Seaboard  Air  Line  Belt  Railroad  Co.,  of  terminal  facilities 
at  Atlanta,  Ga,  554. 

Georgia,  Carolina  &  Northern  Ry.  to  share  in,  554. 
Contract  with  two  above  companies  as  to  interchange  of  business, 

554. 
Leased  roads,  what  have  been,  by  N.  C.  &  St.  L.  Ry. 

Western  &  Atlantic  Railroad,  335. 

Chattanooga  Terminal  Railroad,  448. 

Louisville  &  Nashville  Terminal  Railway,  557. 

Tennessee  Midland  Railroad,  455. 

Paducah,  Tennessee  &  Alabama  Railroad,  487. 
Purchased  roads,  what  have  been,  by  N.  C.  &  St.  L.  Ry 

Nashville  &  Northwestern  Railroad,  76. 

Hickman  &  Obion  Railroad,  104. 

Pikeville  Branch  Railroad,  266. 

Winchester  &  Alabama  Railroad,  152. 

McMinnviile  &  Manchester  Railroad,  166. 

Tennessee  &  Pacific  Railroad,  129. 

Southwestern  Railroad,  192. 


INDEX.  963 

NASHVILLE,  CHATTANOOGA  A  ST.  LOUIS  RY.— Continued. 

Inman  Branch  Railroad,  269. 

Nashville  &  Tuscaloosa  Railroad,  227. 

Tracy  City  Branch  Railroad,  277. 

West  Nashville  Branch  Railroad,  318. 

Huntsville  &  Elora  Railroad,  214. 

Duck  River  Valley  Narrow  Gauge  Railroad,  250. 

Bon  Air  Railroad,  199. 

Tennessee  &  Ooosa  Railroad,  287. 

Allen's  Creek  extension,  288. 

Rome  Railroad,  381. 

Middle  Tennessee  and  Alabama  Railroad.  406,  410. 
Built  roads,  what  have  been,  by  N.,  C.  &  St.  L.  Ry. 

Shelbyville  Branch,  286. 

Jasper  Branch,  264. 

Southwestern  Railroad,  most  of,  192. 

Centerville  Branch,  part  of,  227. 

Tennessee  &  Coosa  Railroad,  part  of,  287. 

Swan  Creek  Branch,  228. 

West  Nashville  Branch,  part  of,  318. 
Map  of  road,  see  front  of  book. 
Mortgages  on.     (See  "Mortgages.") 

NASHVILLE  &  NORTHWESTERN   RAILROAD. 

How  acquired  by  N.,  C.  &  St.  L.  Ry..  76. 

What  franchises.  etc.,  passed  under  sale,  77. 

Width  of  right  of  way,  78. 

Where  Nash.  &  N.  W.  Railroad  Co.  incorporated,  80. 

Distance  built  when  purchased,  80. 

Effect  of  purchase  In  icndering  N..  C.,  &  St.  L.  Ry.,  as  to  this  line,  a 

domestic  corporation  of  Kentucky,  856. 
Original  charter  (annotated),  81. 
General  powers,  81,  82. 
Exclusive  transportation,  87. 
Freight  charges,  87. 

Real  property  may  be  purchased  under  for  what,  90. 
Crossing  roads  and  water  courses,  91. 
Purchase  of  bridges,  roads,  etc.,  91. 

Bridge  across  Tennessee  river,  how  constructed.  99.  100. 
Right  of  way,  how  condemned,  91. 

Character  of  title  acquired  same  as  N.,  C.  &  St.  L.  Ry.,  16 

(note  1). 

In  absence  of  contract.  200  feet,  when,  93. 
Penalty  for  intrusion,  94. 

Obstructing  or  damaging  road  or  bridge,  punishment.  94. 
Obstruction  a  public  nuisance,  95. 


964  INDEX. 

NASHVILLE  &  NORTHWESTERN  RAILROAD— Continued. 

Storage  charges  allowed,  when,  95. 

Crossings  of  roads  and  lands,  96. 

Exemption  from  taxation,  97. 

Branches,  who  may  build,  98. 

Duty  of  road  as  to,  98. 
Amendments  to  Charter  (Chancery  Court),  115-25. 

Validity  of  these  amendments,  695. 
Acts  of  Tennessee  amending  charter  and  relating  to  road. 

Stockholders  not  to  pay  more  than  one  per  cent,  of  subscrip- 
tion, when,  100. 

Authorized  to  build  branch  road  from  Huntingdon  to  Jackson, 
how,  101. 

Authorized  to  commence  work,  when  and  how,  101. 

Time  to  complete  extended,  101. 

Drawbridge  across  Tennessee  river  allowed,  101. 

Subscription  foi  stock  in  regulated,  101. 

Western  terminus  of  road  fixed,  103. 

Hickman  &  Obion  Railroad  authorized  to  be  leased  or  pur- 
chased, how,  103. 

Stockholders  in  Henry  county,  and  west  of  M.  &  O.  Railroad, 
provided  for,  103. 

Charter  of  Hickman  &  Obion  Railroad  Co.,  104  (note). 

Mississippi  Central  Railroad  Co.  authorized  to  be  leased  or 
consolidated  with,  108. 

Authorized  to  unite  with  any  company  connecting  with  it  in 
direction  of  New  Orleans,  108. 

Authorized  to  unite  with  and  have  common  track  with  Mem- 
phis, Clarksville  &  Louisville  Railroad,  where  and  how,  110. 

Authorized  to  chango  route,  110. 

Authorized  to  consolidate  with  Mississippi  &  Tennessee  Cen- 
tral Railroad,  how,  110. 

Authorized  to  adopt  gauge  of  N.  &  C.  Railroad,  111. 

Authorized  to  run  cars  to  depot  of  Central  Trunk  Railroad, 
how.  111. 

Stockholders  to  pay  only  one  per  cent,  cash  on  subscribing,  111. 

Authorized  to  issue  stock  to  taxpayers  of  Davidson  county, 
when,  112. 

Extra  time  given  to  get  stock  and  prepare  road,  112. 

Resolution   directing  governor  to  surrender  the  road  to   its 
president  and  directors,  112. 

Resolution  directing  inquiry  concerning  application  of  bonds 
issued  by  state  to,  113. 

State  aid  to,  113. 

Internal  improvement  acts,  45. 

Authorized  tc  run  cars  upon  track  of  Nashville  and  Memphis' 


INDEX. 

NASHVILLE  &  NORTHWESTERN  RAILROAD— Continued. 

Railroad   Co.   am1    Memphis,   Clarksville   &   Louisville  Rail- 
road Co.,  114. 

Authorized  to  lease  its  road  to  N.  &  C.  Railroad  Co.,  34. 
Acts  of  Kentucky  relating  to. 

Charter  of,  in  Kentucky,  125. 

Charter  re-enacted  in  Kentucky,  126. 

State  of  Tennessee  given  statutory  lien  on  that  part  of  road 

in  Kentucky  as  security  for  bonds  issued,  126. 
Hickman  &  Obion  Railroad  Co.  authorized  to  sell  its  road  to, 

127. 

Charter  Hickmun  &  Obion  Railroad  Co.,  104  (note). 
Map  of  road,  see  front  of  book. 
Mortgages  on.     (See  "Mortgages.") 

NASHVILLE  &  TUSCALOOSA  RAILROAD.     (Centreville  Branch.) 

How  acquired  by  N.,  C.  &  St.  L.  Ry.,  227. 

Legality  of  purchase  of,  228  (note  5). 

Deed  to  part  of  road  from  Dickson  to  Centreville,  241. 

Where  registered,  243  (note). 

Deed  to  part  of  road  from  Centreville  to  Lewis  county  line,  243. 

Where  registered,  245  (note). 

Width  of  right  of  way,  229. 

What  franchises,  etc.,  parsed  under  above  sales,  228. 

Gauge  changed,  when,  228  (note  4). 

Road  from  Kimniiiis  to  Mannie,  on  Allen's  Creek,  how  acquired 

by  N.,  C.  &  St.  L.  Ry.,  228  (note  2). 
Deed  to,  245;  see  also  228  (note  2). 
Where  registered.  228  (note  2). 
Road  from  Centreville  to  Swan  Creek,  in  direction  of  Duck  river 

phosphate  mines,  how  built,  228  (note  3). 
Road  from  Lyles  to  Warner,  228  (note  6). 

Original  charter  of  Nashville  &  Tuscaloosa  Railroad  (annotated), 
230. 

Genera,  powers  under,  230 
Special  provisions,  231. 
Express  and  implied  powers.  232. 
Charter  may  be  repealed  or  amended,  232. 
Right  of  way,  how  condemned,  233. 
Authorized  200  feet,  233. 
Land  may  be  taken,  how.  233  et  seq. 
Statute  of  limitations  as  to  damages  for,  237. 
Not  interfere  with  highways,  streets,  etc.,  237-8. 
Transportation  charges,  237-8. 
Crossings,  signboards,  etc..  238. 
Regulations  for  running  trains,  239. 


966  INDEX. 

NASHVILLE  &  TUSCALOOSA  RAILROAD.— Continued. 

Prohibited  contracts.  239. 
Map  of,  see  map  in  front  of  book. 
Mortgages  on.     (See  "Mortgages.") 

NORTHWESTERN  BRANCH. 

(See  Nasnvine  &  Northwestern  Railroad.) 

PADUCAH,  TENNESSEE  AND  ALABAMA  RAILROAD. 

How  acquired,  487. 

Abstract  of  title,  487  et  seq. 

Legality  of  lease.  *89. 

Roger's  suit  concerning,  489  (note). 

Distance  built  when  leased,  490. 

How  and  where  incorporated,  490. 

Composed  of  what  original  roads,  490. 

Legality  of  consolidation  of  original  roads,  491  (note  1). 

Width  of  right  of  way,  491. 

In  Tennessee,  491 

In  Kentucky,  493. 
Lease  contract  (temporary),  472,  500. 

Where  registered,  476  (note). 
Lease  contract  (permanent),  477,  500. 
Deed  of  J.  W.  Phillips  to  L.  &  N.  Railroad  Co.,  of  road,  529. 
Deed  where  registered,  533  (note). 

Original  charter  of  Faducah  &  Tennessee  Railroad  Co.   (of  Ky.), 
491. 

General  powers  under,  494,  522. 

Width  of  right  of  way,  495. 

Land  for  taken  how,  495,  498,  500,  522. 

Land  for  other  purposes,  495,  498. 

May  hold  and  condemn  land,  496,  498,  500. 

Franchises  made  perpetual,  496,  522. 

May  indorse  bonds  of  cities,  counties,  etc.,  496. 

May  consolidate  with  other  roads,  496,  526. 

May  borrow  money,  issue  bonds,  etc.,  how,  503,  526. 

May  mortgage.  503   (note),  526. 

Taxation,  504. 

Charter  of  amended,  522. 

Acts  of  Kentucky,  as  to  Paducah  and  Tennessee  Railroad  Co.   (of 
Ky.),  520. 

Route  changed,  520. 

Original  charter  of  the  Paducah  &  Tennessee  Ry.  Co.  (of  Tenn.), 
505. 

General  powers  under,  505. 


INDEX.  967 

PADUCAH,  TENNESSEE  &  ALABAMA  RAILROAD— Continued. 

Franchises  under.  506. 
Where  charter  registered,  507  (note). 

Original  charter  of  the   Paducah   &   Tennessee  Railroad  Co.    (of 
Tenn.),  508. 

General  powers  under.  508. 
Franchises  under,  509. 
Where  charter  registered,  510  (note). 

Articles  of  consolidation  of  the  three  above  companies,  creating 
the  Paducah.  Tennessee  &  Alabama  Railroad  Co.,  510  et  seq. 
Franchises  of  old  companies  vested  in  new,  513. 
Where  articles  of  consolidation  registered,  515   (note). 
Minutes  of  constituent  companies   authorizing  consolidation,   516 

et  seq. 

Consolidation  approved  by  the  legislature,  527-8. 
Effect  of  lease  in  rendering  N.,  C.  &  St.  L.  Ry.  a  domestic  corpora- 
tion of  Kentucky,  856,  861  (note). 
Map  of  road,  see  front  of  book 

PIKEVILLE  BRANCH. 

How  acquired,  260. 

Width  of  right  of  way.  267. 

Original  charter  of  (annotated),  267. 

Deed  to,  273. 

Where  registered,  266. 

Map  of  road,  see  front  of  book. 

Mortgages  on.     (See  "Mortgages.") 

PRESIDENT. 

How  chosen.  876. 

Qualifications,  876. 

Pro  tern.,  how  elected,  877. 

Powers  of,  877. 

May  call  meetings  of  directors,  when,  878. 

PURCHASE. 

In  Tennessee. 

Power  to  purchase  real  and  personal  estate,  878. 

Lands  for  storehouses,  depositories,  workshops,  materials, 

etc..  878. 

Bridges  and  turnpikes.  878. 
Stork  in  othor  railroad  companies.  887. 
Other  rf-llroadfr,  879. 
Franchises  of  other  companies.  879. 
May  purchase  privately  or  under  judicial  proceedings.  879. 


968  INDEX. 

PURCHASE— Continued. 

Purchase  carries  franchises,  when,  880. 

Purchaser  under  foreclosure  proceedings,  rights  of,  880. 

May  purchase,  build,  lease  or  sell  railroad,  or  any  part 

thereof,  in  any  state,  880. 
May  purchase  branches  and  extensions,  881. 
Purchasers  at  judicial  sale  may  organize  into  corporate 
company,  how,  and  with  what  powers,  882. 

Where  railroad  lies  wholly  or  partly  in  state,  882. 

May  organize  new  company,  883. 

What  interest  entitles  to  one  vote,  883. 

Organization,  883. 

Memoranda  to  be  filed  with  secretary  of  state,  883. 

Certificate  of  organization,  883. 

Shares,  bords,  etc.,  to  be  issued  by  directors,  884. 

Purchaser  pets  property  free  of  vendor's  debts,  when, 

884. 

Who  to  authorize  purchase,  directors  or  stockholders,  884. 
Vote  necessary,  884. 
Duty  of  purchasing  road  as  to  completing  and  operating 

entire  line,  885. 

Power  of  N.,  C.  &  St.  L.  Ry.  over  purchased  roads,  887. 
In  Alabama. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  purchase  roads  in  Alabama, 

887,  889. 

Both  roads  must  have  power,  888  (note). 
Domestic  railroad  companies  may  sell  to  foreign,  888. 
Lines  may  be  extended,  or  branch  roads  acquired,  890. 

Mode  of  purchasing  branch  roads,  890. 
Court  of  equity  may  order  sale  of  railroads,  when,  891. 
Purchasers  at,  duty  of,  891. 
Rights  of,  891. 
Purchasers  of  railroads  may  organize  as  a  corporation,  892. 

Mode  of  organization,  892. 

Purchasers  under  power  in  mortgage  or  deed  of  trust,  892. 
Purchase    of    competing    steamship    lines    not    authorized  by 

power  to  purchase,  776. 
Duty  of  purchasing  road  as  to  completing  and  operating  entire 

line,  885. 
In  Georgia. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  purchase  roads  in  Georgia,  893. 
Both  roads  must  possess  power,  893  (note  1). 
Cannot  purchase  parallel  or  competing  lines,  893  (note  3). 
Railroads  chartered  under    general  law  may  purchase    other 
roads  not  competing,  893. 

May  sell  or  lease  their  roads  to  or  consolidate  with  other 
companies,  894. 


INDEX.  969 

PURCHASE—  Continued. 

Purchasers  at  judicial  sales  in  Georgia,  rights  of,  895. 

Reorganization  of,  896. 

How  incorporated,  896. 
Rolling  stock,  as  to  the  purchase  of,  897. 

Validity  and  record  of  contracts  for,  897. 
Duty  of  purchasing  road  as  to  completing  and  operating  entire 

line,  885. 
In  Kentucky. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  purchase  roads  in  Kentucky, 
898. 

Cannot  purchase  parallel  or  competing  lines,  899  (note). 

Both  roads  must  possess  power,  one  to  sell  and  other  to 

purchase,  899. 
Purchasers    uuder    foreclosure    proceedings,    powers    of,    899 

(note). 

Foreign  corporations,  899  (note  2). 

What  roads  have  been  purchased  by  N.,  C.  &.  St.  L.  Ry. 
Nashville  &  Northwestern,  76. 
Hickman  &  Obion,  104. 
Pikeville  branch,  266. 
Winchester  &  Alabama,  152. 
McMinnville  &  Manchester,  166. 
Tennessee  &  Pacific,  129. 
Southwestern,  192. 
Inman  branch,  260. 
Nashville  &  Tuscaloosa,  227. 
Tracy  City  branch,  277. 
West  Nashville  branch,  318. 
Huntsville  &  Elora.  214. 
Duck  River  Valley  Narrow  Gauge,  250. 
Bon  Air,  199. 
Tennessee  &  Coosa,  287. 
Allen's  Creek  extension,  288. 
Rome  Railroad,  381. 

Middle  Tennessee  &  Alabama  Railroad,  406.  410. 
(See  also  "Leased  Roads.") 
Map  of,  see  map  in  front  of  book. 

RIGHT  OF  WAY. 

In  Tennessee. 

Abandonment  of.  right  to.  696.  697. 

As  ground  for  forfeiture  of  charter  considered,  697. 
May  abandon  depots,  stations,  etc..  when.  914. 
Right  to  abandon  part  or  whole,  when.  411  (note  8). 
Right  to  remove  rails,  bridges,  etc..  on.  when.  410  (note  1). 


970  INDEX. 

RIGHT  OF  WAY— Continued. 

As  to  duty  of  completing  and  operating  an  unfinished  pur- 
chased road,  see  885. 
Railroads  chartered  under  general  act  may  change  either 

terminus,  when,  887. 
Character  of  title  acquired,  737  (note). 

Where    condemned    under    charter   of    main    branch,    737 

(note). 

In  absence  of  condemnation  or  contract,  738. 
What  branches  does  this  apply  to,  738  (note  2). 
(For  other  branches  see  their  respective  charters  herein.) 
In  absence  of  contract  or  condemnation,  right  of  way  200 

feet,  when  and  where,  738  (note  2). 
Landowner's  possession  not  adverse,  when,  739. 
Railway  may  take  when  necessary  for  railroad  purposes, 

739. 

Necessity  for  taking,  who  to  determine,  740. 
Effect  where  house  built  on  right  of  way,  741. 
To  what  branches  does  this  apply,  740  (note  2). 
Condemnation,  may  be  for  what. 

Charter  provision  on  subject,  736. 
Approaches  to  road  may  be,  17  (note  2),  737. 
Lateral  roads  not  exceeding  eight  miles,  752. 
Lateral  roads  fifteen  miles,  752. 
Connections  with  other  roads,  754. 
County  roads  or  highways,  how,  755. 
Condemnation,  how  made  now,  750,  766  et  seq. 

Where  lateral  road  to  extend  from  leased  road,  who 

to  condemn,  754. 

Where  It  extends  from  purchased  road,  who  to    con- 
demn, 753. 

Statute  of  limitations  as  to  damages  for,  773. 
Successive  appropriation,  745. 

Power  to  take  land  to  broaden  right  of  way,  not  exhausted, 

745. 

To  what  branches  does  this  apply,  749  (note). 
May  condemn  though  contract  not  to  do  so,  7oO. 
May  not  be  for  workshops,  storehouses,  materials  and  houses 

for  agents,  738. 
Nature  of  railway's  ownership  of  right  of  way,  742. 

Right  to  trees,  herbage,  gravel,  etc.,  on  right  of  way,  744. 
What  damage  to  landowner  included  in  condemning  right 

of  way,  745. 

Overflow  for  twenty  years  gives  right,  745. 
As  to  duty  of  company  to  complete  and  operate  an  unfin- 
ished purchased  road,  see  885. 


INDEX.  971 

RIGHT  OF  WAY— Continued. 

Power  of  others  to  condemn  right  of  way  of  this  company. 
Power  of  other  roads  as  to,  756. 

Can  future  legislatures  change  this  so  as  to  authorize,  759. 
Power  of  cities  as  to,  760. 
Power  of  counties  as  to,  760. 
May  condemn  crossings,  when,  760. 
So  may  railroads,  761. 

Telegraph  aad  telephone  companies,  762.  763. 
Conditions,  7C2. 

Only  nominal  damages,  when.  767. 

Railroads  hereafter  built  not  to  take  wider  strip  than  neces- 
sary. 764. 

Other  roads'  rights  as  to,  when.  764. 
May  condemn  joint  use  of  tracks  in  narrow  passes,  gorges, 

etc.,  of  future  roads.  765. 
This  does  not  apply  to  N.,  C.  &  St.  L.  Ry.  and  possessions, 

766  (note). 
Width  of  right  of  way  of, 

Allen's  Creek  extension,  246. 

Bon  Air  Branch,  199. 

Centreville  Branch,  229. 

Chattanooga  Terminal  Railway,  449. 

Columbia  Branch,  251. 

Duck  River  Valley  Narrow  Gauge  Railroad.  251. 

Fayetteville  Branch,  154. 

Gadsden  Branch,  288. 

Hickman  &  Obion  Railroad,  78. 

Huntsville  &  Elora,  214. 

Jnman  Branch,  no  specified  width  mentioned  in  deed,  or 

charter  of  company  condemning,  269. 
Jasper  Branch,  265. 
Lebanon  Branch.  131. 
McMinnvilie  Branch.     (See  McMinnville  &    Manchester 

Railroad:   Southwestern  Railroad:   Bon   Air  Railroad.)  " 
McMinnville  &  Manchester  Railroad,  169. 
Memphis   Branch,   451*. 

Middle  Tennessee  &  Alabama  Railroad.  411.  412. 
N.,  C.  *  St.  L.  Ry.  (main  stem).  17.  18.  737.  738. 
Nashville  &  Northwestern  Railroad.  78. 
Nashville  &  Tuscaloosa  Railroad.  229. 
Northwestern  Branch.  78. 
Paducah.  Tenn.  &  Ala.  Railroad,  491. 
Pikevllle  Branch.  267. 
Rome  Railroad.  380. 
Sequatchie  Valley   Branch.   265.   267. 
Sewane*>  Branch.  279. 


972  INDEX. 

RIGHT  OF  WAY— Continued. 

Shelbyville  Branch,  286. 

Southwestern  Railroad,  193. 

Sparta  Branch,  169,  193,  199. 

Tennessee  &  Coosa  Railroad,  288. 

Tennessee  &  Pacific  Railroad,  131. 

Tennessee  Midland  Railroad,  459. 

Tracy  City  Branch,  279. 

Western  &  Atlantic  Railroad,  336. 

West  Nashville  Branch,  319. 

Winchester  &  Alabama  Railroad,  154. 
In  Alabama. 

Nature  of  railway's  holding  of  right  of  way,  774,  742. 

See  also  Tennessee  law  above. 
Easement  acquired,  775. 
Different  as  to  main  branch,  774,  737  (note). 
Trespassers  may  be  ejected  from  right  of  way,  775. 
Width  of  right  of  way  in  absence  of  contract,  775. 
Adverse  possession,  775. 
Successive  appropriations,  776. 
May  condemn  i'or  branch  roads,  when,  639,  640. 
Power  of  other  roads  to  condemn  on  this,  776. 
Railroads  may  condemn  connections  and  crossings,  776. 
Cities  may  authorize  tracks  to  be  built  on  or  across  streets, 

776. 

Railroad  public  highway,  776. 
Franchise  forfeited  by  nonuser,  776. 
Telegraph  and  telephone,  rights  as  to  condemning  right  of  way 

on,  776,  783. 

How  land  condemned  in  Alabama,  777  et  seq. 
Power  of  this  company  to  condemn  on  purchased  roads,  777 

(note). 

Right  to  trees,  gravel,  etc.,  on  right  of  way,  744. 
As  to  duty  of  company  to    complete    and    operate    purchased 

roads,  885. 
In  Georgia. 

Nature  of  railway's  holding  of  right  of  way,  784,  742. 

(See  also  Tennessee  law,  above.) 
Easement  only  acquired,  when,  784. 
Different  as  to  main  branch,  784,  737  (note). 
Injunction  will  lie  to  prevent  others  from  building  on,  784. 
Statute  of  limitations  runs  against,  when,  785. 

As  to  main  line,  see  737  (note),  738. 
Misuser  of  franchise  may  work  dissolution,  785  (note). 
Power  of  cities  to  open  streets  across,  785. 
When  streets  opened,  railroad  not  prevented  from  laying  ad- 
ditional tracks  at  crossing,  785. 


INDEX.  973 

RIGHT  OF  WAY— Continued. 

Successive  appropriation,  786. 

Connecting  switches  with  other  roads  may  be  condemned,  786. 

May  condemn  land  for  branch  roads,  786. 

Power  of  other  roads  to  condemn  right  of  way  of  this,  786. 

To  condemn  joint  use  of  tracks,  terminal  facilities,  etc.,  of  this. 

787. 
Width  of  right  of  way  of  roads  chartered  under  general  law, 

787. 

Right  of  eminent  domain,  787. 

Telegraph  companies,  powers  as  to  occupying  right  of  way  of 
railways.  789. 

Duties  as  to,  789. 
Laws  applicable  to  W.  &  A.  R.  R.  Co.,  789,  336  (note). 

Road  laws  also  apply,  789. 
How  land  condemned  in  Georgia,  790  et  seq. 

Character  of  title  acquired  under.    General  notes,  797. 
Right  to  trees,  gravel,  etc.,  on  right  of  way,  744. 
As  to  duty  of  company  to  complete    and  operate    unfinished 

purchased  roado,  885. 

What  damage  to  landowner  included  in  condemnation  of,  745. 
May  change  general  route,  when,  887. 
As  to  changing  line  so  as  to  side  track  town,  96  Ga.,  385. 
In  Kentucky. 

Nature  of  railway's  holding  of  right  of  way,  799,  742. 

Easement  only  acquired,  799. 

Adverse  possession  of  right  of  way,  800. 

Presumption  on  sale  of  right  of  way,  800. 

Constitution  to  be  accepted  before  land  acquired,  801. 

Power  of  other  roads  to  cross  this,  802-3-4. 

Power  of  telegraph  companies  to  condemn  right  of  way  over, 

804. 

Successive  appropriations,  804. 
How  land  condemned,  804  et  seq. 

Power  of  railways    chartered    under   general    act  to  acquire 
lands  for,  801. 
Width  of  right  of  way.  802. 
Change  gauge.  802. 
Change  location,  when,  802. 
(See  also  Tennessee  law,  above.) 
Right  to  trees,  gravel,  etc.,  on,  744. 

What  damage  to  landowner  Included  in  condemnation.  745. 
As  to  duty  of  company  to  complete  and  operate  an  unfinished 

purchased  road,  885. 
As  to  changing  location,  see  Code  Ky..  1894.  sec.  768. 


974  INDEX. 

ROME  RAILROAD. 

How  acquired,  379. 

Legality  of  purchase,  379  (note  1). 

Effect  of  purchase  in  domesticating  N.,  C.  &  St.  L.  Ry.  in  Georgia, 

379  (note  2). 

What  franchises  passed  under  sale,  380. 
Width  of  right  of  way,  380. 
Distance  built  when  purchased,  381. 
Deed  to,  390. 
Original  charter  of  (annotated),  381. 

Name  formerly  Memphis  Branch  Railroad  &  Steamboat  Co.  of 
Georgia,  382. 

General  powers  under,  382.  389. 

Freight  and  passenger  charges,  385. 

Road  to  be  completed,  when,  385. 

Land  for  right  of  way,  how  acquired,  386. 

Public  roads  not  to  be  obstructed,  387. 

As  to  other  road^,  within  twenty  miles,  387. 
Amendment  to  charter  authorizing  sale  of  road,  397  et  seq. 

Time  for  completing  road  extended,  402. 

Route  of  road  provided  for,  402. 

Name  changed  to  Rome  Railroad  Company,  403. 

Authorized  to  consolidate  with  Memphis  Branch  R.  R.  Co.,  404. 

Authorized  to  use  common  tracks,   etc.,   with   certain  roads, 
when  and  where.  404. 

Amended  by  adding  word  "Trustee"  in  8th  section  of  charter, 
404. 

Capital  stock  increased,  etc.,  402. 
Map  of  road,  see  map  in  front  of  book. 
Mortgage  on.  (See  "Mortgages.") 

ROLLING  STOCK. 

(See  "Sales,"  "Purchase.") 

RULES  AND  REGULATIONS. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  make,  899. 

Must  be  reasonable,  899. 

Depots,  stations,  rules  as  to,  900. 

Tickets,  rules  as  to,  900. 

Ladies'  car,  rules  as  to,  901. 

Schedule  regulations,  901. 

Sleeping  car  regulations,  901. 

Passenger  regulations,  902. 

Car  service  rules,  90  L 

Baggage  and  freight  departments,  902. 


INDEX.  i'T.. 

RULES  AND  REGULATIONS— Continued. 

Employes,  rules  governing,  902. 
Who  to  enact  rules  an-l  regulations,  903. 
How  differ  from  by-laws,  903. 
Construction  of  rules,  903. 

SALES. 

In  Tennessee. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  sell  its  railroad,  franchises, 
etc.,  904. 

Charter  provision  on  subject,  904. 

May  sell  under  general  law,  905  et  seq. 

Who  to  authorize,  stockholders  or  directors,  906. 

Vote  necessary.  906. 

Both  roads  must  possess  power,  one  to  sell  and  other  to 

buy,  907. 

Power  to  sell  its  purchased  roads,  907. 
Rolling  stock  and  equipments,  conditional  sale  of,  907. 
Leasing  clause  for,  90S. 

Contract  to  be  probated  and  registered  where,  908. 
Rolling  stock  to  be  branded,  908. 
Sale  of  freight  for  charges,  821. 
In  Alabama. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  sell  its  road  in  Alabama,  909. 

Both  roads  must  possess  power,  909  (note  1). 
Domestic  corporations  may  sell  their  property  to  foreign.  888. 
Courts  of  equity  may  order  sales  of,  when,  909. 
Power  to  sell  its  purchased  roads,  910. 
Sale  of  freight  for  charges,  824-5. 
In  Georgia. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  sell  its  road  in  Georgia.  910. 
Both  roacla  must  possess  power,  one  to  sell  and  other  to 

buy,  911  (note  1). 

Cannot  sell  to  parallel  or  competing  lines,  911. 
Power  to  sell  its  purchased  roads  in  Georgia,  911. 
Sale  of  freight  for  charges,  827. 
In  Kentucky. 

Power  of  N.,  C.  &  St.  L.  Ry.  to  sell  its  road  In  Kentucky.  912. 
Cannot  sell  to  parallel  or  competing  lines.  912  (note  1). 
Both  roads  must  have  power,  one  to  sell  and  other  to  buy, 

911  (note  1). 

Power  to  sell  its  purchased  roads  In  Kentucky,  913. 
Foreign  corporations.  912  (note  2). 

Purchasers  un-ler  foreclosure  proceedings,  powers  of,  913. 
Sale  of  freight  for  charges,  829. 


976  INDEX. 

SEABOARD  AIR  LINE  BELT  RAILROAD  COMPANY. 

Lease  of  terminal  facilities  at  Atlanta,  to,  554. 
Contract  for  interchange  of  business  by  and  with  the  N.,  C.  &  St. 
L.  Ry.,  554. 

Georgia,    Carolina  &  Northern    Railway    interested  in  above 

lease,  554. 

Duration  of  contract,  conditions,  554. 
Receiving  and  delivering  cars  on  tracks  at  Howell's  provided 

for,  555. 

Consideration,  555. 

Joint  use  of  depot  at  Atlanta  provided  for,  555. 
Cleaning  and  storing  engines  and  cars  provided  for,  556. 
Consideration,  556. 
Termination  of  contract  in  part  provided  for,  556. 

SEQUATCHIE  VALLEY  BRANCH. 

How  acquired,  264. 

Composed  of  Jasper,  Pikeville,  and  Inman  branches,  264. 

Jasper  branch,  how  acquired,  264. 

Width  of  right  of  way  of,  265. 

State  aid  to,  266  (note  3),  274. 

Road  from  state  line  to  Jasper  authorized  by  Tennessee,  how, 
274. 

Road  from  Bridgeport  to  state  line  authorized  by  Alabama, 

how,  275. 
Pikeville  branch,  how  acquired,  266. 

Width  of  right  of  way  of,  267. 

Original  charter  of  (annotated),  267. 

Deed  to,  273. 

Where  registered,  266. 
Inman  branch,  how  acquired,  269. 

Legality  of  purchase  of,  269  (note). 

Deed  to,  270. 

Where  registered,  269. 

When    Tennessee    Coal,    Iron  &  Railway  Co.  chartered,    269 

(note) . 

Map  of  road,  see  map  in  front  of  book. 
Mortgage  on.     (See  "Mortgages.") 

SEWANEE  BRANCH. 

(See  "Tracy  City  Branch.") 

SHELBYVILLE  BRANCH. 

How  acquired,  286. 

Width  of  right  of  way,  286. 

Completed  about  1852.     (See  map  in  front  of  book). 
Map  of  road,  see  map  in  front  of  book. 
Mortgage  on.     (See  "Mortgages.") 


INDEX.  977 


SIDE  TRACKS. 


In  Tennessee. 

Power  to  build  side  and  spur  tracks,  641. 
In  Alabama,  power  to  build,  641. 
In  Georgia,  power  to  build,  641. 
In  Kentucky,  power  to  build,  641. 

SOUTHERN  RAILWAY  COMPANY. 

(See  Memphis  &  Charleston  Railroad  Company). 

Lease  of  joint  use  of  track  from  Stevenson,  Ala.,  to  Chattanooga, 

formerly  made  by  N.,  C.  &  St  L.  Ry.  to  M.  &  C.  R.  R.  Co.,  passed 

to,  543. 
Lease  of  joint  use  of  track  at  Dalton,  Ga,,  passed  to,  by  purchase 

of  East  Tennessee,  Virginia  &  Georgia  Railway,  548. 

SOUTHWESTERN  RAILROAD.     (Part  of  McMinnville  Branch.) 

How  acquired  by  N.,  C.  &  St.  L.  Ry.,  192. 
Legality  of  purchase  of,  193  (note  3). 
Width  of  right  of  way,  193. 
Original  charter  of  (annotated),  194. 

General  powers,  194,  195. 

Given  powers,  rights  and  privileges  of  N.,  C.  &  St.  L.  Ry.,  194. 
Acts  relating  to. 

Nashville  &  Cincinnati  R.  R.  Co.  authorized  to  unite  on  com- 
mon track  with,  197.  • 

Receiver  of  authorized  to  be  settled  with,  197. 

State  aid  to,  198. 

Internal  improvement  acts,  45. 
Map  of  road,  see  map  in  front  of  book. 
Mortgage  on.     (See  "Mortgages.") 

SPARTA  BRANCH. 

(See  McMinnville  &  Manchester  Railroad,  and  Southwestern  Rail- 
road; they  form  the  branch.  See  also  Bon  Air  Railroad  for  ex- 
tension). 

Map  of  road,  see  map  in  front  of  book. 

Mortgage  on.     (See  "Mortgages.") 

SPUR  TRACKS. 

Power  to  build,  641. 

STATIONS. 

In  Tennessee. 

Power  to  abandon,  tear  down,  and  remove,  914. 


978  INDEX. 

STATIONS— Continued. 

In  Alabama,  914. 

In  Georgia,  inoperative,  when,  914. 

In  Kentucky,  inoperative,  when,  914. 

Rules  and  regulations  concerning,  899. 

Numerical  list  of,  see  reverse  sides  of  map  in  front  of  book. 

Distances  respectively  from  Nashville,  same. 

Union  station  at  Nashville,  589. 

May  keep  hotel,  restaurant  and  news  stand  in,  564. 

STOCK. 

(See  "Capital  Stock.") 

STOCK  GAPS. 

In  Tennessee. 

Stock  gaps  at  private  crossings,  712b,  712c. 

Stock  gaps  on  unfenced  tracks,  71 2c. 

Applies  to  fields  hereafter  opened,  712c. 

Must  fence  and  erect  lawful  stock  gaps  or  be  liable  for  stock 

killed,  808. 
In  Alabama. 

Stock  gaps  must  be  erected  where,  716. 
In  Georgia. 

Stock  gaps  required  where,  717. 

Liability  for  failure,  718. 

Additional  stock  gaps  required  where,  718. 

Stock  gaps  on  W.  &  A.  R.  R.,  right  of  landowners  to  build,  815. 
In  Kentucky. 

Stock  gaps  to  be  erected  where,  720. 

STOCKHOLDERS. 

May  inspect  books,  928. 
Meetings  of,  charter  provision  as  to,  915. 
General  meetings. 

By-laws  -as  to,  915. 

Time  and  place  of  holding,  915. 

Notice  of,  916.  917. 

When  notice  must  state  object  of  meeting,  918. 

Adjourned,  916,  918. 

Officers  hold  till  successors  elected,  916,  924. 

Quorum,  916.  918. 
Special  meetings,  916. 

Who  may  call  and  for  what  purpose,  916. 

Notice  of,  916,  917. 

When  notice  must  state  object  of,  918. 


INDEX.  '.'7:« 

STOCKHOLDERS— Continued. 

When  there  are  two  or  more  calls  for  same  meeting.  92S. 
Meetings  out  of  state,  918. 
Election  of  directors,  721  et  seq. 
Judges  and  clerks  of  elections,  who  appoints,  919. 
Voting,  919. 

May  be  by  proxy,  919. 

How  vote  taken,  919. 

Scale  of,  919. 

Qualification  of  stockholder  to  vote  at  elections,  919. 

Not  disqualified,  because  interested  in  subject-matter. 

or  election,  920. 
Who  may  vote,  920. 

Where  shares  held  by  two  or  more  persons  Jointly,  921. 
Where  stock  pledged  or  mortgaged.  921. 
Where  shares  held  by  surviving  partner,  921. 
Where  owner  dead,  922. 

Where  shares  held  by  other  corporations.  922. 
Whero  shares  owned  by  corporation  itself.  922. 
Where  shares  held  by  receiver,  923. 
Where  shares  held  by  trustee.  923. 
When  in  name  of  partners,  923. 
When  in  name  of  "A.  B.,  Cashier,"  923. 
Who  elected,  923. 

When  president  fails  to  call  election,  924. 
Two  or  more  calls,  where  meeting  then  held.  925. 
Stockholders  may  petition  judge  or  chancellor,  925. 
Order  to  be  recorded,  926. 
Election,  how  conducted  then.  926. 
Compensation  of  clerk,  927. 
Certificates  of  election,  927. 
Qualification  of  officers-elect,  927. 
May  take  charge  of  all  papers,  books,  etc..  927. 
Proceedings  ngainat  overholding  board,  927. 
Petition  and  proceedings  thereon,  928. 

SWAN  CREEK  BRANCH 

How  constructed  by  N..  C.  &  St.  L.  Ry..  228  (note  3). 
TAXATION. 

Stock  in  N.,  C.  &  St.  L.  Ry.  exempt  from  taxation.  23.  693. 

How  taxes  on  W.  &  A.  R.  R.  paid.  346. 

How  taxes  on  main  line  in  Georgia  to  be  paid,  59. 


980  INDEX. 

TELEPHONE  AND  TELEGRPAH   COMPANIES. 

Power  to  condemn  right  of  way  along  railroad  in  Tennessee,  762, 

763. 

In  Alabama,  776,  783. 
In  Georgia,  789. 
In  Kentucky,  804. 

TENNESSEE  &  COOSA  RAILROAD. 

How  acquired,  287. 

Legality  of  purchase,  288  (note  3j. 

What  franchises  passed  under  sale,  288. 

Additional  franchises,  288. 

Distance  built  when  purchased,  288. 

Width  of  right  of  way,  288. 

Deed  to,  298. 

Original  charter  of  (annotated),  290. 

Land  for  rignt  of  way,  how  acquired,  294,  295. 

Character  of  title  acquired  to  right  of  way,  296. 

Termini,  route,  290. 

General  powers  in,  291. 

Mortgages  under,  292. 

Injury  to  road  under,  296. 

Public  roads  not  to  be  obstructed  under,  296. 

Freight  rates  under  not  to  exceed  what,  297. 

Other  roads  may  cross  this,  297. 

Amendments  to  charter  as  to  semi-annual  reports  to  gov- 
ernor, 812. 

As  to  suits  for  subscription;  witnesses,  313. 
Changing  lime  of  holding  elections,  313. 
Effect  of  purchase  in  rendering  N.,  C.   &   St.   L.   Ry.   a  domestic 

corporation  in  Alabama,  843. 
Acts  Alabama  relating  to,  309  et  seq. 
Termini  changed,  309. 

Released  from  indebtedness  to  state,  311,  314. 
Granting  N..  C.  &  St.  L.  Ry.  right  to    build    through    certain 
counties  with  rights,  privileges,  etc.,  of  Tennessee  charter, 
315. 

State  aid  to,  316. 

Map  of  road,  see  map  in  front  of  book. 
Mortgage  on.     (See  "Mortgages.") 

TENNESSEE  &  PACIFIC  RAILROAD. 

How  acquired,  129. 

Legality  of  purchase,  130  (note  1). 

Legality  of  purchase  of  stock  in,  130  (note  2). 


INDEX.  '.'-I 

TENNESSEE  &  PACIFIC  RAILROAD— Continued. 

Deed  to,  143. 

Where  registered,  129,  144. 
What  franchises,  etc.,  passed  under  sale,  130. 
Width  of  right  of  way,  131. 
Where  incorporated,  131. 
Distance  built  when  purchased,  131. 
Original  charter  of  (annotated),  131. 
General  powers,  131,  132. 
Rate  of  freight  charges,  137. 
Right  of  way,  how  condemned,  138. 

Given  powers  of  N.,  C.  &  St  L.  Ry.  as  to,  138,  139. 
(See  sees.  24  and  25  of  charter  of  N.,  C.  &  St  L.  Ry.) 
State  aid  to,  140,  141. 
Company  subject  to  general  laws,  142. 
The    right  to  mcdity,    alter  or  repeal    the    charter    was    not 

specifically  reserved,  however,  142  (note). 
Hence  is  irrevocable,  678,  679. 
Acts  of  Tennessee  amending  charter  and  relating  to  road. 

Counties  of  Wilson  and  Davidson  authorized  to  vote  for  stock 

in,  144. 
Authorized  to  unite  upon  a  common  track  with  Nashville  ft 

Cincinnati  Railroad  Co.,  how,  145. 
Suit  directed  to  be  instituted  against  for  bonds  fraudulently 

obtained,  146. 

Resolution  directing  directors  to  account  for  funds  received, 
disclose  stockholders  in  and  give  distance  road  built  and 
costs,  147. 

Commissioners  directed  to  sell,  148. 
State's  claim  against,  authorized  to  be  compromised  for  $300,- 

000,  150. 

State  aid  to,  151. 
Internal  improvement  acts,  45. 
Map  of  road,  see  map  in  front  of  book. 
Mortgage  on.     (See  "Mortgages.") 

TENNESSEE  MIDLAND  RAILWAY. 

How  acquired.  435. 

Legality  of  lease,  457. 

Rogers'  suit  concerning,  457  (note). 

Distance  built  when  leased,  458. 

Width  of  right  of  way.  459. 

Lease  contract  (temporary).  472. 

Where  registered.  476  (note). 
Lease  contract  (permanent),  477. 
Deed  of  J.  W.  Phillips,  of  road,  to  L.  ft  N.  Railroad  Co..  488. 

6*« 


982  INDEX. 

TENNESSEE  MIDLAND  RAILWAY— Continued. 

Deed  where  registered,  486  (note). 
Original  charter  of  (annotated),  459. 

General  powers  under,  460 

Special  provisions,  461. 

Express  and  implied  powers,  462. 

Charter  may  be  repealed  or  amended,  462. 

Right  of  way,  how  condemned,  463. 

Land,  how  taken  for,  463  et  seq. 

Statute  of  limitations  as  against  damages  for,  467. 

Gauge,  467. 

Charges  for  transportation,  467. 

Construction  of  tracks  on  highway,  467. 

Crossings,  signboards,  468. 

Regulations  for  running  trains,  468. 

Prohibited  contracts,  469. 

Freight  must  be  received  from  other  roads,  469. 

Where  charter  registered,  471  (note). 
Map  of  road,  see  map  in  front  of  book. 

TRACY  CITY  BRANCH. 

How  acquired,  277. 

Width  of  right  of  way,  279. 

Distance  built  when  purchased,  279. 

What  franchises  passed  under  sale,  279. 

Legality  of  purchase,  279  (note  2). 

When  Tennessee  Coal  &  Railroad  Co.  chartered,  278   (note). 

Deed  to,  280. 

Where  registered,  285. 

Mortgage  on.     (See  "Mortgages.") 

Map  of  road,  see  map  in  iro'nt  of  book. 

WARNER  BRANCH. 

What  interest  N.,  C.  &  St.  L.  Ry.  has  in,  228  (note  6). 
Map  of  road,  see  map  in  front  of  book. 

WESTERN  &  ATLANTIC  RAILROAD. 

How  acquired,  335. 

When  road  built  by  Georgia,  335  (note  1). 

Legality  of  lease,  335  (note  2). 

What  personal  property  passed  under  lease,  336  (note  3). 

Relation  of  state  of  Georgia  to  road,  and  laws  applicable  to,  336 

(notes  4,  5). 

Width  of  right  of  -way,  336. 
Charter  of  Hiwassee  Railroad,  63. 


INDEX.  .'-:', 

WESTERN  &  ATLANTIC  RAILROAI>— Continued. 

Nature  of  company's  control  of  right  of  way.  337  (note  8). 
Map  of  right  of  way,  3.17  (note  4).    (See  also  map  in  front  of  book.) 
Lease  contract,  348. 

What  laws  apply  to,  336.  (notes  4,  5).  789,  815. 
Act  authorizing  lease,  337. 

How  lease  contract  to  be  drawn  and  executed,  339. 

Bonds  to  be  deposited,  339. 

Lease  forfeited,  when.  339,  344. 

Bonds  to  be  collateral  security  for  faithful   performance  of 

lease,  340. 

Additional  security,  when.  340. 

Betterments  and  improvements  to  belong  to  whom.  341,  346. 
Road  to  be  kept  first-class,  341. 
Examiners,  341. 

Lessee  to  report  to  legislature,  when,  341. 
Liable  for  deterioration  in  value,  341. 
Inventory,  how  and  by  whom  made,  342. 
Incorporation  of  lessees,  342. 
Name,  342. 

General  powers,  342  et  seq. 
Freight  and  passenger  tariffs,  344. 

Lessee  to  be  held  harmless  against  bonds  on  road,  344. 
Rbad  and  rolling  stock  to  be  received  and  accounted  for.  how, 

344. 

Rent,  how  paid,  347. 
Subletting  prohibited,  exceptions,  346. 

This  did  not  prevent  mortgaging,  346  (note  1). 
Shops  and  principal  office  to  remain  in  state,  347. 
Governor  to  operate  road,  when,  347. 
Taxes,  who  to  pay.  346. 
Conflicting  laws  repealed,  347. 
Lessee's   authorized   to  construct  side  tracks   across   certain 

roads,  when  and  how.  367. 
Lease  contract,  348. 
List  of  rolling  stock  and  personal  property  received  under  lease. 

352  et  seq. 
Acts  Georgia  relating  to,  362  et  seq. 

Pillars  of  Kcnnesaw  house,  in  Marietta,  allowed  to  rest  on 

right  of  way,  how,  362. 
Cincinnati  Southern  Railroad  allowed  to  run  on  right  of  way 

of.  how,  362. 
Dalton  &  Gadsden  Railroad  Co.  allowed  to  build  on  right  of 

way.  how.  363. 

Georgia  Western  Railroad  Co.  authorized  to  build  on  right  of 
way,  how.  364. 


984  INDEX. 

WESTERN  &  ATLANTIC  RAILROAD— Continued. 

Polk  State  Quarry  Railroad  Co.  authorized  to  build  on  right 

of  way.  how,  364. 

Mill  race  under  right  of  way  one  mile  south  of  Dalton  author- 
ized to  be  built  by  G.  W.  Keith,  364. 
Gainesville  &  Western  Railroad  Co.  authorized  to  cross  W.  & 

A.  Railroad,  365. 
Marietta   &   North   Georgia  Railroad   authorized   to   build   on 

right  of  way  froiri  Marietta  to  Marble  Mills,  how,  366. 
Georgia  OverlanJ  Railroad  &  Improvement  Co.  authorized  to 

cross  right  of  way,  how,  366. 
Lessees   authorized    to   construct   side   tracks   across   certain 

roads,  when  and  how,  367. 

Catoosa  Springs  Co.'s  railroad  authorized  to  be  built  on  right 
of  way,  from  Ringgold  to  bridge  across  Chickamauga  creek, 
how,  368. 
Georiga,  Alabama  &  Carolina  Railroad  Co.  authorized  to  cross 

W.  &  A.  Railroad,  how,  369. 
Fairmount  Valley  Railroad  not  to  run  nearer  than  ten  miles 

of,  when,  370. 

Stock  gaps,  right  of  landowners  to  build,  815. 
Resolutions  of  Georgia  relating  10,  370. 
Acts  of  Tennessee,  relating  to,  371. 

Rights  of  N.,  C.  &  St.  L.  Ry.  granted  to  Georgia  in  building,  371. 
Rights  of  Hiwassee  Railroad  Co.  granted  to  Georgia  in  build- 
ing, 371. 

Charter  of  Hiwasse  Railroad  Co.,  63. 
Further  time  granted  to  complete,  372. 
Memorial  of  Tennessee  legislature  to  Georgia  legislature  in 

regard  to,  and  comity  between  states,  372. 
Lease  to  East  Tenn.,  Va.  &  Ga.  Ry.  Co.,  of  joint  use  of  tracks  at 

Dalton,  Ga.,  of,  548. 
Lease  to  Seaboard  Air  Line  Belt  Railroad  Co.  of  terminal  facilities 

at  Atlanta,  of,  554. 

Lease  to  be  shared  in  by  Georgia,  Carolina  &  Northern  Ry.,  554. 
Contract  for  interchange  of  business  between,  554. 
Map  of  road,  see  map  in  front  of  book. 
Mortgage  on.     (See  "Mortgages.") 

WEST  NASHVILLE  BRANCH. 

How  acquired,  313. 
Legality  of  purchase,  318  (note  2). 
What  franchises,  etc.,  passed  under  sale,  318. 
Width  of  right  of  way,  319. 
Original  charter  (annotated),  319. 
General  powers  under,  320. 


INDEX.  985 

WEST  NASHVILLE  BRANCH— Continual. 

Express  and  implied  powers,  321. 

May  be  repealed  or  amended.  322. 

Mortgages  under,  322. 

Condemnation  of  right  of  way.  322. 

How  land  taken,  323  et  seq. 

Limitations  of  proceedings  for  damages  for  right  of  way,  326. 

Gauge,  transportation  charges,  327. 

Tracks  not  to  obstruct  roads,  streets,  etc.,  327. 

Crossings,  signboards,  327. 

Regulations  for  running  trains  over,  328. 

Prohibited  contracts,  328. 

Must  receive  freight  from  other  roads,  328. 

Where  charter  registered,  S29  (note). 
Deed  to,  330. 
Where  registered,  334. 
Map  of  road,  see  map  in  front  of  book. 
Mortgage  on.     (See  "Mortgages.") 

WINCHESTER  &  ALABAMA  RAILROAD.     (Fayetteville  Branch.) 

How  acquired  by  N.,  C.  &  St.  L.  Ry.,  152. 

Legality  of  purchase  oi.  153  (note). 

Deed  to.  158. 

Where  registered,  161  (note). 

Whai  franchises  passed  under  sale,  153. 

Width  of  right  ot  way,  154. 

Where  incorporated,  154. 

Distance  built  when  purchased,  155. 

Original  charter  of  (annotated),  156. 

General  powers  same  as  N.,  C.  &  St.  L.  Ry.,  156.  157  (note). 
Decree  vesting  title  to  road,  franchises,  etc.,  in  Memphis  &  Charles- 
ton Railroad  Co.,  161. 
Where  registered,  1C3  (note). 
Acts  Tennessee  amending  charter  of,  and  relating  to  road. 

Authorized  to  extend  road  from  Winchester  to  N.  &  C.  Rail- 
road, how,  163,  156  (note). 

Capital  increased.  163. 

Authorized   to  construct  road   to   Fayetteville,   how,   163.   157 
(note). 

Resolution  directing  investigation  of  condition  of  road.  164. 

State  aid. to.  i»;i 

Internal  improvement  acts.  45. 
Map  of  road,  see  map  in  front  of  book. 
Mortgage  on  (see  "Mortgages.") 


University  of  California 

:»13; 

from  which  it  was  borrowed. 


A     000  684  627     3 


